author: Glass, J.

text:
    Todd Douglas v. Warden, State Prison
    (14119)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued February 20
    decision released May 21, 1991

      David J. Wenc, for the appellant (petitioner).

      RitaM. Shair, deputy assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and, on the brief, Mary Elizabeth Baran, assistant state’s attorney, for the appellee (respondent).
   Glass, J.

The petitioner, Todd Douglas, filed an amended writ of habeas corpus alleging that the Appellate Court’s dismissal of his appeal had violated his federal constitutional rights to due process and to the assistance of counsel, and requesting that his appeal be reinstated on the Appellate Court’s docket. The habeas court dismissed the petition on the grounds that the Appellate Court had not deprived the petitioner of his constitutional rights and that the habeas court lacked authority to restore his appeal to the Appellate Court’s docket. We affirm.

The facts are as follows. After a jury trial, the petitioner was convicted of one count of burglary in the first degree, one count of robbery in the first degree and two counts of unlawful restraint in the first degree. He was sentenced to a total effective term of sixteen years imprisonment. On August 20,1984, the petitioner appealed to the Appellate Court.

After the petitioner’s indigence had been established, Attorney John Watson of the appellate unit of the public defender’s office was appointed to represent him in the appeal. Watson began preparing an appellate brief, but the petitioner grew dissatisfied with Watson because, in his view, Watson had given him poor advice in an earlier, unrelated matter. Ultimately, he filed a petition for a writ of habeas corpus alleging that Watson had engaged in misconduct and that a conflict of interest existed between them. Watson accordingly withdrew his appearance.

Special public defender R. Bartley Halloran was then appointed to represent the petitioner. Approximately two weeks later, at the petitioner’s request, Halloran gave him the transcripts of his trial proceedings for review. The petitioner subsequently refused to return the transcripts. Some seven months thereafter, the petitioner filed a grievance against Halloran and a petition for a writ of habeas corpus and eventually advised Halloran that his services were no longer desired. On June 11,1986, Halloran filed a motion to withdraw his appearance on behalf of the petitioner, which the Appellate Court granted.

Approximately one and one-half years then passed, along with the deadline for filing the petitioner’s appellate brief. The petitioner conceded at the habeas hearing that he had taken no action to secure appointed counsel or otherwise perfect his appeal during that period. On March 25,1988, the Appellate Court mailed notices to the petitioner’s addresses of record stating that a hearing pursuant to Practice Book § 4055 would be held on April 7, 1988, to determine whether the appeal should be dismissed for failure to file a brief, and that the petitioner could submit a letter to the court rather than personally appear at the hearing. The court subsequently learned that the petitioner had been relocated to a federal penitentiary in Pennsylvania. A revised notice was promptly mailed to him at that address, indicating that the hearing had been rescheduled for May 5, 1988, and again, that a letter would suffice in lieu of a personal appearance. Having received no response from the petitioner, the court dismissed his appeal for failure to prosecute with due diligence on May 5, 1988.

On the following day, however, the court received from the petitioner a letter entitled: “Notification of Delay and Request for Extension of Time Indefinitely—Until the Habeas Corpus Claim ... to Appoint Appellate Attorney is Decided.” The letter was returned to the petitioner along with a notice stating that his appeal had been dismissed. The petitioner then filed a motion for reargument or reconsideration, in which he gave reasons for his delayed response to the hearing notice and urged that the court reconsider its order of dismissal in light of his letter. On July 13,1988, the court reconsidered and reaffirmed its order of dismissal.

Thereafter, on August 21, 1989, the petitioner amended his habeas petition to allege that the procedures employed by the Appellate Court in granting Halloran’s motion to withdraw and dismissing his appeal deprived him of his federal constitutional right to due process, and, in addition, that he had been denied his federal constitutional right to the assistance of appointed counsel because the Appellate Court had neglected to appoint appellate counsel for him. At the habeas hearing, the petitioner modified his original prayer for relief to request that the habeas court restore his appeal to the Appellate Court’s docket and appoint counsel to prosecute his appeal. The state then moved to dismiss the petition on the grounds that the habeas court lacked authority to reinstate the petitioner’s appeal on the Appellate Court’s docket, and that, in any event, he had suffered no deprivation of his constitutional rights. The habeas court dismissed the petition, and this appeal followed.

In his appeal, the petitioner argues that the habeas court improperly determined that: (1) the Appellate Court did not violate his federal constitutional right to due process; (2) the Appellate Court did not deprive him of his federal constitutional right to the assistance of counsel; and (3) it lacked authority to reinstate his appeal on the Appellate Court’s docket.

I

The petitioner first claims that the procedures employed by the Appellate Court in connection with Halloran’s motion to withdraw and its dismissal of his appeal violated our rules of practice and his federal constitutional right to due process. With respect to Halloran’s motion, the petitioner claims that the notice he received did not comply with our rules of practice, and that the Appellate Court was constitutionally required to conduct an “evidentiary” hearing on the motion. He similarly attacks the Appellate Court’s failure to hold an “evidentiary hearing” before dismissing his appeal. We consider these claims in turn.

A

Halloran moved to withdraw his appearance pursuant to Practice Book § 4035 (c). That subsection provides in pertinent part: “No motion for leave to withdraw shall be granted until the court is satisfied that reasonable notice has been given to the party being represented . . . .” The petitioner concedes that he received a copy of Halloran’s motion to withdraw, but contends that this did not amount to “reasonable notice” under § 4035 (c) because he did not also receive the memorandum in support of the motion so that he could “properly respond.”

The petitioner has not demonstrated how he was prejudiced by his lack of access to the supporting memorandum or his alleged inability to respond to the matters stated therein. In fact, in a letter to Halloran filed along with the motion, the petitioner attested to almost all of the matters set forth in the memorandum, thereby evincing his prior awareness of them. Furthermore, the petitioner’s letter effectively responded to both the motion and the memorandum by implicitly indicating his consent to the granting of the motion as follows: “I’m officially notifying you that your legal services are undesired .... [Terminating this corresponding relationship by withdrawing your legal services will be the best course of action to resolve our conflict of interest.” Upon receipt of Halloran’s motion, albeit absent the supporting memorandum, the petitioner failed to utilize the opportunity available under Practice Book § 4041 (a) to register his opposition to the motion, nor does he now claim that he would have opposed the motion if he had received the memorandum or otherwise would have responded in a manner contrary to his wishes as stated in his letter. We therefore conclude that, in these circumstances, the mailing of Halloran’s motion, alone, constituted notice sufficient to satisfy the requirements of § 4035 (c).

As for the Appellate Court’s failure to hold a hearing on the motion, our rules of practice provide that hearings on motions to withdraw “will be assigned only upon order of the court or upon specific request of one of the parties in accordance with [Practice Book §] 4044.” Practice Book § 4043; see also Practice Book § 4041 (b). The petitioner did not request that Halloran’s motion be assigned for a hearing pursuant to Practice Book § 4041 (b) in accordance with § 4044. In addition, while he now seems to claim that the motion raised a factual issue requiring an “evidentiary” hearing, he failed to request that the Appellate Court exercise its supervisory powers under Practice Book §§ 2000 and 4183 (10) to “remand [the] matter to the trial court for the resolution of factual issues where necessary.” Practice Book § 4183 (10).

Although the Appellate Court could have ordered, sua sponte, an appellate hearing on the motion or ordered the matter remanded to the trial court for a factual determination; see Practice Book §§ 2000, 4043, 4183 (10); we do not agree that its failure to do so deprived the petitioner of due process. “ ‘[T]he fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked.’ Anderson National Bank v. Luckett, 321 U.S. 233, 246 [64 S. Ct. 599, 88 L. Ed. 692 (1944)]. But this does not mean that every order entered without notice and a preliminary adversary hearing offends due process. The adequacy of notice and hearing respecting proceedings that may affect a party’s rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct.” Link v. Wabash R. Co., 370 U.S. 626, 632, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962). In this case, the circumstances demonstrate that Halloran’s withdrawal was prompted by the petitioner’s letter stating that withdrawal was “the best course of action.” The letter indicated that the petitioner understood that the withdrawal would result in his loss of Halloran’s representation in the appeal, as well as his desire for that precise result. Consequently, the petitioner can hardly assign a due process violation to the Appellate Court’s failure to order or conduct a hearing on an issue that it could reasonably have been induced to believe was a nonissue as a result of his own representations. We therefore conclude that the habeas court correctly determined that the Appellate Court’s procedures respecting Halloran’s motion to withdraw did not deprive the petitioner of due process.

B

The petitioner’s claim that the Appellate Court violated his due process rights by failing to hold an “evidentiary” hearing before dismissing his appeal is also without merit. If the petitioner had desired such a hearing before the trial court, he did not make that desire apparent to the Appellate Court by filing an appropriate request pursuant to § 4183 (10). Even if he had made such a request, however, the issue of whether he had failed to prosecute his appeal diligently was not a “factual” issue necessitating a remand to the trial court for resolution under § 4183 (10). The resolution of that issue required a discretionary determination based upon the record and the facts as represented by the parties. Loomis v. Zoning Commission, 144 Conn. 743, 746, 133 A.2d 906 (1957); see Maykut v. Plasko, 170 Conn. 310, 313, 365 A.2d 1114 (1976); Bronson v. Mechanics Bank, 83 Conn. 128, 129, 134-35, 75 A. 709 (1910); see also Reilly v. Pepe Co., 108 Conn. 436, 442-43, 143 A. 568 (1928); accord Murphy v. Elms Hotel, 104 Conn. 351, 353-54, 133 A. 106 (1926). It was incumbent upon the Appellate Court to “analyze the entire course of conduct and determine whether, under the circumstances, any good reason appears why the appellant should be permitted further to pursue his appeal.” Loomis v. Zoning Commission, supra.

An opportunity for the petitioner to provide “good reason” for his neglect of the appeal, therefore, was all that due process required. Such an opportunity was afforded to the petitioner when the court scheduled, sua sponte, a § 4055 hearing pursuant to Practice Book § 4043, and offered him the alternative, in view of his incarceration, of submitting a letter stating his reasons why the appeal should not be dismissed for lack of due diligence. The petitioner took advantage of the latter opportunity by submitting a letter with several attachments at the rehearing on the motion to dismiss, and he has not claimed that he was precluded from bringing any additional matter to the Appellate Court’s attention. Furthermore, the Appellate Court reconsidered its original order of dismissal in light of the petitioner’s letter. He therefore was given ample opportunity to be heard as provided for under our rules of practice and was effectively “heard” regarding the dismissal when the Appellate Court reconsidered its order of dismissal. As a consequence, we cannot say that the Appellate Court’s procedures deprived the petitioner of due process.

II

The petitioner next claims that the Appellate Court “frustrated” his constitutional right to the assistance of appointed counsel because it “neglected to appoint an attorney” for him. As he conceded at the habeas hearing, however, the petitioner did not request that the Appellate Court appoint counsel for him either at the time of Halloran’s withdrawal or at any time thereafter. The habeas court, in determining that the state had provided the petitioner with two “extremely capable” attorneys, whom the petitioner had, in effect, discharged while his appeal was pending, implicitly found that the Appellate Court would have been justified in refusing to appoint yet another attorney for him even if he had requested one. We agree.

“The assistance of appellate counsel . . . may not be denied to a criminal defendant, solely because of his indigency, on the only appeal which the State affords him as a matter of right.” Swenson v. Bosler, 386 U.S. 258, 259, 87 S. Ct. 996, 18 L. Ed. 2d 33 (1967). Nonetheless, the constitutional right of an indigent accused to the assistance of appellate counsel “may be waived, if it is waived intelligently, understanding^ and in a competent manner. Moore v. Michigan, 355 U.S. 155, 161, 78 S. Ct. 191, 2 L. Ed. 2d 167 [1957]; Uveges v. Pennsylvania, 335 U.S. 437, 441, 69 S. Ct. 184, 93 L. Ed. 127 [1948].” State v. Nash, 149 Conn. 655, 662, 183 A.2d 275, cert. denied, 371 U.S. 868, 83 S. Ct. 130, 9 L. Ed. 2d 104 (1962). Where the record clearly demonstrates that an accused was offered counsel by the court and rejected the offer, he bears the burden of establishing that he did not intelligently and understandingly waive his right to counsel. Id.; see Consiglio v. Warden, 153 Conn. 673, 678, 220 A.2d 269 (1966); see also Moore v. Michigan, supra. An accused who collaterally attacks a judgment of conviction on the ground of an unconstitutional deprivation of the assistance of counsel must prove nonwaiver by a preponderance of the evidence. Moore v. Michigan, supra, 161-62; Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). The petitioner failed to satisfy this burden.

The record discloses that the petitioner was offered and rejected the services of not one, but two state-paid attorneys. His reason for rejecting the first attorney, Watson, was his unsubstantiated assertion that Watson previously had given him poor advice in an unrelated matter, which, in his opinion, amounted to misconduct and created a “conflict of interest” between him and Watson. The petitioner neither alleged nor established at the habeas hearing that Watson’s performance with respect to his appellate brief fell below the required standard of “reasonable competence” displayed by lawyers with ordinary training and skill in the criminal law. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984).

As for Halloran, the asserted ground for rejection of his services was another “conflict of interest” that the petitioner primarily attributed to Halloran’s “procrastinating in prosecuting [the] appeal.” We have recognized that, as an adjunct to the right to the assistance of counsel, “a criminal defendant is entitled to be represented by an attorney free from conflicts of interest.” State v. Williams, 203 Conn. 159, 167, 523 A.2d 1284 (1987). Our courts are not, however, constitutionally required to comply with a demand for the appointment of replacement counsel on the basis of a purported conflict that arises from the unreasonable conduct of the accused himself. State v. Crenshaw, 210 Conn. 304, 314, 544 A.2d 1074 (1989); State v. Drakeford, 202 Conn. 75, 84, 519 A.2d 1194 (1987); see Sekou v. Warden, 216 Conn. 678, 688, 583 A.2d 1277 (1990). The record reveals that Halloran’s inability to prosecute the appeal resulted from the petitioner’s refusal to return the trial transcripts after they had been delivered to him, at his request, approximately one month after Halloran had been appointed. At the habeas hearing, the petitioner produced no evidence to establish that he had been willing to return the transcripts or otherwise cooperate in the preparation of his appeal. He did not claim, moreover, that Halloran was incompetent or would have been unable to present his appellate claims in an effective manner. Under these circumstances, we cannot say that a “conflict of interest” arising primarily from the petitioner’s groundless belief that Halloran was to blame for the delay in the filing of his appellate brief amounted to a “valid and sufficient reason” that would have entitled him to the appointment of replacement counsel. State v. Gethers, 193 Conn. 526, 543, 480 A.2d 435 (1984); McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981), cert. denied, 456 U.S. 917, 102 S. Ct. 1773, 72 L. Ed. 2d 177 (1982).

In this case, therefore, we are not confronted with “a situation where the accused was handicapped by mental deficiency or other inability to make an intelligent choice, or by precipitateness in the acceptance of a plea of guilty. See Carter v. Illinois, 329 U.S. 173, 179, 67 S. Ct. 216, 91 L. Ed. 172 [1946].” State v. Nash, supra, 662. “No one can have the slightest doubt that he was aware at all times that he was knowingly and intelligently rejecting the aid of counsel.” Nash v. Reincke, 212 F. Sup. 877, 881 (D. Conn. 1962), aff’d, 325 F.2d 310 (2d Cir. 1963), cert. denied, 377 U.S. 938, 84 S. Ct. 1345, 12 L. Ed. 2d 302 (1964). The petitioner appears to have been under the mistaken impression, however, that his right to the assistance of counsel encompassed the right to be represented by appointed counsel of his own choosing. “The claim that without reason an accused can refuse the services of the public defender and compel the state to engage counsel of his own choice is without merit.” State v. Reid, 146 Conn. 227, 235, 149 A.2d 698 (1959); see State v. Gethers, supra; see also United States v. Pina, 844 F.2d 1, 6 (1st Cir. 1988).

Upon the present record, therefore, it is evident that the state provided the petitioner with two attorneys that even he does not claim were ineffective, and that he was thereby given an adequate opportunity to present his appeal. See State v. Nash, supra, 662-63; see also Griffin v. Illinois, 351 U.S. 12, 19, 76 S. Ct. 585, 100 L. Ed. 891 (1956). By rejecting the able assistance of his appointed attorneys without sufficient reason, the petitioner “waived his right to counsel on [his] appeal and cannot now take advantage of his refusal to have counsel appointed for him.” State v. Nash, supra, 662; see State v. Drakeford, supra. The Appellate Court would thus have been justified in refusing to appoint yet another attorney for the petitioner even if he had made the appropriate request, and the habeas court properly determined that the Appellate Court did not violate his constitutional right to the assistance of counsel by declining to appoint counsel for him on its own initiative.

Since we conclude that the Appellate Court’s actions did not violate the petitioner’s constitutional rights, the issue of whether the habeas court would have had the authority to grant him habeas relief in the form of reinstatement of his appeal to the Appellate Court’s docket is moot.

The judgment is affirmed.

In this opinion the other justices concurred.

       The petition ultimately was amended to challenge the subsequent actions of the Appellate Court that form the basis of this appeal. The grievance was dismissed with a recommendation that the petitioner seek new counsel.

       The petitioner was informed by the chief public defender that he should “seek assistance from the Court” if he desired the representation of another state-paid attorney.

       Practice Book § 4055 provides in pertinent part: “If a party shall fail to prosecute an appeal with proper diligence, the supreme court may . . . on its own motion, dismiss the appeal . . . .” The same rule applies to the Appellate Court by virtue of Practice Book § 2000, which provides in pertinent part: “The practice and procedure for appeals to the appellate court shall conform to the rules of practice governing appeals to the supreme court except where a particular practice or procedure is specified by the rules of the appellate court. ...”

       The petitioner also raised several equal protection claims, the habeas court’s adverse decision on which he has not challenged in this appeal.

       The petitioner’s original prayer for relief requested that “a writ of habeas corpus be issued to bring him before the court in that justice may be done.”

       In this respect, we note that the petitioner has not claimed that the Appellate Court was without authority or grounds to dismiss his appeal. To the extent that he contends that the Appellate Court was required to appoint counsel for him on its own initiative before granting Halloran’s motion to withdraw or dismissing his appeal, our disposition of his claim in part II, infra, addresses this contention.

       The petitioner also claims that the Appellate Court was required to “provide for” his presence at both evidentiary hearings. Because we conclude that the Appellate Court properly declined to conduct evidentiary hearings, we do not address this claim.

       Practice Book § 4041 (a) provides in pertinent part: “A party intending to oppose a motion or application shall file a brief statement clearly setting forth the factual and legal grounds for opposition within ten days after the filing of the motion or application. The opposing party may but need not file a memorandum of law in opposition to the motion or application within ten days after the filing of the motion or application.”

       Practice Book § 4044 provides: “Any motion requiring a hearing, a copy of which has been received by the chief clerk of the supreme court before the assignment of cases for hearing under Sec. 4104, shall be assigned for hearing at the same time that other assignments are made. Motions subsequently received by the clerk may be assigned for hearing at any time, notice thereof being given to counsel.”

       Practice Book § 4043 provides: “Hearings on motions to dismiss under Secs. 4055 and 4056, on motions for judgment under Sec. 4055 and on applications for withdrawal of appearance under Sec. 4035 will be assigned only upon order of the court or upon specific request of one of the parties in accordance with Sec. 4044. Hearings on other motions, petitions and applications will be similarly assigned only if ordered.”

       Practice Book § 4041 (b) provides in pertinent part: “If the party opposing such . . . application [for withdrawal of appearance] desires a hearing, that party shall file a request for hearing with the statement of opposition. . . .”

       See footnote 3, supra.

       See footnote 10, supra.


source: Caselaw Access Project

author: Callahan, J. Shea, J.,

license: Public Domain

text:
    Alphonso Johnson v. Warden, State Prison
    (14198)
    Peters, C. J., Shea, Callahan, Covello and F. X. Hennessy, Js.

      Argued March 21
    decision released May 21, 1991

      L. D. McCallum, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, then attorney general, for the appellant (respondent).

      David J. Wenc, for the appellee (petitioner).
   Callahan, J.

The petitioner, Alphonso Johnson, is in the custody of the respondent warden of the Connecticut Correctional Institution at Somers. His incarceration resulted from his conviction of a crime committed in Connecticut for which he was originally sentenced on February 16,1979, to a term of imprisonment of not less than twenty years nor more than forty years. His sentence was later modified to a term of imprisonment of not less than ten years nor more than twenty years.

While the petitioner was in custody in Connecticut, but prior to his Connecticut conviction, prosecuting officials in New York notified the Connecticut authorities of criminal charges pending against the petitioner in New York and asked that a detainer be lodged against the petitioner pertaining to those charges. On March 5, 1979, following the petitioner’s conviction and sentencing in Connecticut, the New York authorities requested temporary custody of the petitioner pursuant to Article IV of the Interstate Agreement on Detainers (IAD). On March 16,1979, the petitioner was notified by Connecticut officials of the request for his temporary custody by New York prosecuting authorities and was asked to sign a form waiving extradition. The petitioner refused to sign such a waiver. Thereafter, on April 2, 1979, the governor of Connecticut was notified of New York’s request that it be granted temporary custody of the petitioner for the purpose of placing the petitioner on trial in New York on New York’s outstanding criminal charges. On April 19,1979, the governor of Connecticut gave notice that she did not disapprove of New York’s request. See Interstate Agreement on Detainers, General Statutes § 54-186, Art. IV (a). Accordingly, on August 9,1979, temporary custody of the petitioner was transferred to the New York authorities.

The petitioner’s trial on New York’s criminal charges commenced on April 4, 1980. On May 7, 1980, he was convicted of those charges, and on September 5,1980, he was sentenced to a term of imprisonment in New York of not less than fifteen years nor more than life. He was thereafter returned to Connecticut to complete the service of his Connecticut sentence. Subsequently, the New York authorities lodged a detainer with the respondent warden based on the petitioner’s conviction in New York. The petitioner appealed his New York conviction in the courts of that state without success, until his appeal rights were exhausted in 1983. Therefore, when the petitioner is paroled or discharged from his Connecticut sentence, if the New York detainer filed against him is valid, he will be turned over to the New York authorities to serve his sentence in that state.

The petitioner, however, filed a petition for a writ of habeas corpus in the Superior Court in Connecticut. In his petition he alleged that the New York detainer that is lodged against him as a result of his New York conviction should be dismissed and removed from his file because his presence in New York for trial was obtained by a procedure that was in violation of Article IV of the I AD.

The habeas court, as a threshold issue, found that it had the authority to dismiss the New York detainer if the procedure used to obtain the petitioner’s presence in New York for trial violated the IAD. See Remick v. Lopes, 203 Conn. 494, 498-99, 525 A.2d 502 (1987). The habeas court went on to find that the holding of the United States Supreme Court in the case of Cuyler v. Adams, 449 U.S. 433, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1981), which was decided while the petitioner’s New York conviction was on direct review, required a pretransfer hearing for the petitioner before he could lawfully be transferred to New York for trial.

Cuyler v. Adams, supra, was an action brought pursuant to 42 U.S.C. § 1983 for the alleged violation, by Pennsylvania officials, of the respondent Adams’s rights under the IAD. The IAD is a uniform act that, as previously noted, is codified in Connecticut as General Statutes § 54-186. In Cuyler, the United States Supreme Court determined that Article IV of the IAD, which provides for the involuntary transfer of prisoners serving a term of imprisonment in one state to another state for trial on pending criminal charges, requires that such prisoner be afforded a pretransfer hearing substantially in accord with § 10 of the Uniform Criminal Extradition Act, prior to the transfer of the prisoner from the sending state to the receiving state. The Cuyler court found that the respondent Adams, who had not been afforded such a hearing, stated a claim for relief under 42 U.S.C. § 1983. Cuyler v. Adams, supra, 450.

The habeas court, relying primarily on Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334, reh. denied, 490 U.S. 1031, 109 S. Ct. 1771, 104 L. Ed. 2d 206 (1989), determined that Cuyler, which was decided after the petitioner had been transferred to, and tried, convicted and sentenced in New York, but while his case was still on direct review, was to be given retroactive effect and therefore was to be applied to the petitioner’s habeas claim. The habeas court concluded that the application of Cuyler to the petitioner’s claim required the dismissal of New York’s postconviction detainer lodged at Somers because the petitioner had failed to receive a pretransfer hearing prior to his removal to New York. We disagree.

Teague v. Lane, supra, holds generally that, with certain exceptions not pertinent here, new constitutional rules of criminal procedure will not be announced in or applied to cases that are on collateral review. The court in Teague also reiterated the view it had expressed in Griffith v. Kentucky, 479 U.S. 314, 322-23, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987), that “ 'failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.’ ” (Emphasis added.) Teague v. Lane, supra, 304. The Teague court made clear, however, as did the Griffith court, that the court had reference to constitutional rules of criminal procedure when it mandated the application of newly announced rules of criminal procedure to cases still on direct review at the time the rules were announced. See Diggs v. Owens, 833 F.2d 439, 442 (3d Cir. 1987), cert. denied, 485 U.S. 979, 108 S. Ct. 1277, 99 L. Ed. 2d 488, reh. denied, 486 U.S. 1018, 108 S. Ct. 1759, 100 L. Ed. 2d 220 (1988).

Cuyler v. Adams, supra, was not decided on constitutional grounds. Cuyler resolved a conflict among divided federal courts of appeal and state courts as to the proper statutory construction of Article IV of the IAD. Id., 435-36. There is nothing in Cuyler to suggest a constitutional basis for the rule it announced relating to the construction of Article IV. Further, there is nothing in Teague or Griffith that suggests that nonconstitutional rules of criminal procedure are to be given retroactive effect. “There is no reason to apply the Griffith [or Teague] constitutional retroactivity holding here as the [IAD] is ‘nothing more than a set of procedural rules . . . .’ United States v. Palmer, 574 F.2d 164, 167 (3d Cir.), cert. denied, 437 U.S. 907, 98 S. Ct. 3097, 57 L. Ed. 2d 1138 (1978). Therefore, a violation of the [IAD] is not an infringement of a constitutional right.” Diggs v. Owens, supra, 442. Because we conclude that Cuyler did not announce a constitutional procedural rule, the habeas court should not have accorded Cuyler retroactive application to the petitioner under Teague and Griffith.

Furthermore, Cuyler was a case brought under 42 U.S.C. § 1983. It was not a habeas corpus proceeding or a criminal case. The most that can be said for Cuyler, therefore, is that it is precedent for the proposition that the petitioner may have a viable § 1983 claim. We have been unable to find any authority, however, nor has the petitioner directed us to any, that suggests that Cuyler requires dismissal of a posteonviction detainer in a habeas action because of the lack of a pretransfer hearing.

The judgment of the habeas corpus court is reversed and the case is remanded with direction to dismiss the habeas corpus petition.

In this opinion Peters, C. J., Covello and F. X. Hennessy, Js., concurred.

Shea, J.,

concurring. Although I agree with the majority that the habeas petition must be dismissed and the judgment of the habeas court reversed, I would reach that result upon the ground that the petition should have been dismissed at the outset for lack of jurisdiction over the state of New York, the validity of whose judgment convicting the petitioner is under attack in this proceeding. The detainer lodged against the petitioner is based on the New York judgment and authorizes the respondent to hold him in custody for delivery to New York officials when his Connecticut sentence has been served. The detainer, however, is simply a device for enforcement of the New York judgment and must be honored so long as that judgment remains in force. The petitioner purports to seek merely the “dismissal of the conviction detainer” and not to “overturn the New York criminal conviction.” This, however, is a distinction without a difference, as the majority implicitly recognizes by addressing the validity of the New York judgment and holding that the procedural rule announced in Cuyler v. Adams, 449 U.S. 433, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1981), is not retroactive and thus cannot impair that judgment or the detainer filed pursuant thereto.

Because the validity of the detainer that the petitioner concedes he is attempting to have dismissed is inextricably linked to the validity of the New York judgment, this court cannot properly consider the issue raised without the presence of New York in this suit. That state has the primary interest in upholding the validity of the detainer it has filed as a means of assuring delivery of the petitioner to its custody upon the expiration of his Connecticut sentence. The respondent warden, representing this state, has no significant interest in the suit because the petitioner will have satisfied his obligation for the crimes he has committed in this state before the detainer becomes operative.

In Remick v. Lopes, 203 Conn. 494, 525 A.2d 502 (1987), on which the trial court relied in concluding that it had jurisdiction over this petition, we held that under the Interstate Agreement on Detainers (IAD), General Statutes § 54-186, Connecticut, as the “sending” state had jurisdiction to entertain an action by a prisoner seeking to invalidate detainers filed pursuant to the IAD by Massachusetts as the “receiving state” for the purpose of prosecuting charges against the prisoner in that state. The postjudgment detainer filed by New York against this petitioner, however, is not based on the IAD, which involves only pretrial detainers, but upon a judgment of a sister state to which we are constitutionally obliged to give “full faith'and credit.” The validity of any judgment can properly be considered only when all those having a legal interest therein have been made parties to the action.

Because the state of New York is an indispensable party to an action challenging the validity of the judgment it has obtained against the petitioner, the habeas court lacked jurisdiction to consider the issues raised in the petition, which relate wholly to the validity of the New York judgment. So far as the record discloses, the state of New York has not even been given notice of this proceeding, despite the fact that its interest is “of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such condition that its final termination may be wholly inconsistent with equity and good conscience.” Shields v. Barrow, 58 U.S. (17 How.) 130, 139, 15 L. Ed. 158 (1855). “[F]air notice is an essential prerequisite to any kind of judgment.” 1 Restatement (Second), Judgments § 5, comment b. Notice, however, would not satisfy the jurisdictional requirement for the presence of New York as a party in this litigation, in which the outcome must turn upon the validity of its judgment. Since we have no jurisdiction over an indispensable party to the controversy raised by the petition, I would reverse the judgment and remand the case to the habeas court with direction to dismiss the petition for lack of jurisdiction.

       The IAD is codified in Connecticut as General Statutes § 54-186.

       Title 42 of the United States Code, § 1983 provides: “CIVIL action for DEPRIVATION OF RIGHTS
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

       Article IV of the Interstate Agreement on Detainers, General Statutes § 54-186, provides: “(a) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with article V (a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated; provided that the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request; and provided further that there shall be a period of thirty days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.
      “(b) Upon receipt of the officer’s written request as provided in paragraph (a) hereof, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. Said authorities simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor.
      “(c) In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
      “(d) Nothing contained in this article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph (a) hereof, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery.
      “(e) If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to article V (e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”

       The pertinent provision of § 10 of the Uniform Criminal Extradition Act is codified in Connecticut as General Statutes § 54-166, which provides:
      “appearance of accused in court, habeas corpus. No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him has appointed to receive him unless he is first taken forthwith before a judge of any court having criminal jurisdiction in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel states that he or they desire to test the legality of his arrest, the judge of such court shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the state’s attorney of the county in which the arrest is made and in which the accused is in custody, and to the agent of the demanding state.”

       The habeas court in its memorandum of decision also extensively discussed the cases of Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), and Saffle v. Parks, 494 U.S. 484, 110 S. Ct. 1257, 108 L. Ed. 2d 415, reh. denied, 495 U.S. 924, 110 S. Ct. 1960, 109 L. Ed. 2d 322 (1990), in arriving at its conclusion that Cuyler v. Adams, 449 U.S. 433, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1981), was applicable to the petitioner’s claim. Penry and Saffle rely on Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334, reh. denied, 490 U.S. 1031, 109 S. Ct. 1771, 104 L. Ed. 2d 206 (1989), for their rationale.

       The petitioner in Diggs v. Owens, 833 F.2d 439, 442 (3d Cir. 1987), cert. denied, 485 U.S. 979, 108 S. Ct. 1277, 99 L. Ed. 2d 488, reh. denied, 486 U.S. 1018, 108 S. Ct. 1759, 100 L. Ed. 2d 220 (1988), which was a habeas corpus action, attempted to persuade the court that an IAD violation should be given retroactive effect because of Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). The court of appeals decided otherwise.


author: Shea, J.

text:
    Marilyn S. Eslami v. Mehdi S. Eslami
    (14183)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued February 13
    decision released May 21, 1991

      William L. Tobin, with whom was Alvin Rosenbaum, for the appellant (defendant).

      Maureen D. Dennis, with whom were Rosemary E. Giuliano and, on the brief, Karen L. Williams, for the appellee (plaintiff).
   Shea, J.

In this action for a legal separation, the trial court found that the marriage of the parties had broken down irretrievably “due to the defendant’s intransigence and unwillingness to continue the marriage relationship, as well as his attentiveness to another woman.” A decree of legal separation was ordered together with financial orders allocating various assets between the parties and awarding to the plaintiff wife, Marilyn S. Eslami, both periodic and lump sum alimony, medical expenses, life insurance protection and counsel fees. The defendant husband, Mehdi S. Eslami, has appealed, claiming that the court erred with respect to: (1) the admission of testimony of an expert witness called by the wife; (2) the failure to consider the wife’s interest as a beneficiary of her deceased father’s estate, which had not been settled at the time of trial; (3) the determination of the value of the husband’s medical practice, particularly the element of goodwill, and of his total estate; and (4) the award of counsel fees to the wife. We affirm the trial court’s decision upon all these issues.

I

On March 9,1989, the husband filed a request for disclosure of the identity of any expert witness to be called on behalf of his wife as well as a statement of the “subject matter on which” and the “substance of the facts and opinions to which the expert is expected to testify,” as provided by Practice Book § 220 (A) (1). Upon the failure of the wife to respond to his request within thirty days, as required by Practice Book § 228, the husband filed a motion pursuant to Practice Book § 231 to compel her to answer his interrogatories. The response of the wife was filed on April 27,1989, and named a firm of certified public accountants as the expert witness to be called. She stated that the “[vjalue of [the] defendant’s medical practice” would be the subject matter of the expert testimony and indicated that the factual substance of the testimony would be the “[vjalue of said medical practice based upon a review of the financial records of said medical practice.” The name of a real estate appraiser who would testify to the value of a building in which the husband held an interest was also furnished and a copy of his report was attached to the response. It was indicated that no report had yet been received from the accounting firm.

At the start of trial on May 2,1989, the husband filed a motion in limine seeking to preclude any testimony of the witness from the accounting firm engaged by his wife concerning the value of his practice as a radiologist. During argument of the motion it appeared that the attorney for the husband had been present when employees of the accounting firm had examined the husband’s financial records and had even scheduled a deposition of the expert witness to be used at trial, which the wife’s attorney had cancelled. In response to an inquiry by the court, the husband’s attorney replied that he did not intend to seek any depositions.

The court denied the motion in limine “at this point,” observing, “I don’t think the defendant up to this time has used due diligence in pursuing the matter of the deposition.”

On May 24, 1989, three days of testimony having intervened since the denial of the motion in limine, the wife called Arthur Sanders, an employee of the accounting firm, to testify to the value of the husband’s radiological practice. His written report, which had not been made available previously, was offered into evidence. The husband thereupon renewed his motion in limine to exclude the report as well as Sanders’ testimony. Sanders testified that the delay in preparing his report was attributable to a lack of cooperation on the part of the husband in failing to make pertinent financial records available. The trial court again denied the motion in limine, noting that an order had been issued in October, 1989, for an appraisal of the husband’s practice and, “according to the witness, [the husband] failed to abide by that order.” The court also declared: “If anybody is playing cat and mouse, it’s the [husband].”

The finding of the trial court, which is adequately supported by the evidence, that the principal source of delay in the disclosure of the content of Sanders’ testimony was the husband’s failure to make his financial records available, greatly undercuts his claim on appeal that the sanction of excluding such testimony should have been imposed on the wife for failure to furnish Sanders’ appraisal report earlier than just before he testified. Even if the court had concluded that the wife’s answers to the interrogatories were not fully responsive, it would not follow that sanctions should necessarily be imposed. Practice Book § 231 provides that, when there has been a failure to comply with a discovery order, “the court may, on motion, make such order as the ends of justice require,” which “may include” one or more of the specified sanctions. It is virtually frivolous for the husband to suggest that the court abused its broad discretion by failing to impose the sanction of excluding testimony because of delay in furnishing the report of an expert v/itness, after concluding that the delay was largely attributable to the husband’s failure to comply with the order for disclosure of his financial records.

II

At trial it was undisputed that the wife had a financial interest in the estate of her father, who had died approximately two and one-half years before trial. The estate had not been settled, however, because her brother was contesting the will, and that litigation was still pending. The wife testified that she had already incurred expenses of approximately $73,000 in the will contest, but that she expected to “net out maybe $180,000” from the estate, if the will should be upheld. In making the financial awards, the trial court did not consider the wife’s interest in her father’s estate, because the value of her interest could not be determined until the pending litigation had been resolved.

In Rubin v. Rubin, 204 Conn. 224, 232, 527 A.2d 1184 (1987), this court held that a contingent remainder interest in an inter vivos trust held by a spouse did not constitute “property” subject to assignment by the court to the other spouse pursuant to General Statutes § 46b-81 in rendering a judgment dissolving the marriage. We ruled also that evidence of a mere expectancy of receiving an inheritance in the future was inadmissible. See also Krause v. Krause, 174 Conn. 361, 365, 387 A.2d 548 (1978). In the present case, the interest of the wife in her father’s estate had vested upon his death and had ceased to be a mere expectancy. Its value, however, could not be ascertained with certainty because of the unresolved will contest, which continued to generate expenses to be borne by the wife.

In Rubin we mentioned some of the hazards of basing financial awards on expectations or contingencies that ultimately may never be realized wholly or partially. “Relying upon such an illusory order, a court may assume that adequate provision has been made for a needy spouse and neglect to provide more dependable means of support, such as a sufficient periodic alimony order or a greater share of assets owned at the time of the decree.” Rubin v. Rubin, supra, 235. Although the interest involved here had vested in the wife at the time of trial, the court could reasonably have concluded that uncertainty as to the amount she would eventually receive from her father’s estate militated against consideration of that interest for the purpose of the financial awards.

The plaintiff’s interest in her father’s estate, however, is not wholly irrelevant to a fair financial arrangement between the parties. When periodic alimony has been ordered, a substantial change in the financial need or ability of a party provides a basis for modification of such an award, unless such a change was contemplated at the time of the marriage dissolution. General Statutes § 46b-86. In Rubin we concluded that the increase in the husband’s financial ability that would occur upon his mother’s death “would constitute a change of circumstances ordinarily warranting an increase in the weekly alimony payment . . . .’’ Rubin v. Rubin, supra, 236. Similarly, in this case, when the value of the wife’s legacy or inheritance has been determined, there would be a basis for adjusting the alimony order, unless other circumstances relevant to financial ability or need may have intervened. “Any prediction of what justice between the parties may require when a future event may occur is likely to be less well considered than a determination made after the event, when speculation as to the circumstances involved has been supplanted by actuality.” Id. We conclude that the court did not abuse its discretion in failing to consider the undetermined value of the wife’s interest in her father’s estate, since the decree was fashioned in such a manner as to allow for modification of the alimony award when the value of her interest becomes ascertainable. It was within the discretion of the court to defer consideration of the effect the wife’s inheritance should have on the financial orders until its value was known.

Ill

The husband has raised a plethora of claims with regard to the factual findings of the value of certain of his assets that are related to the financial awards. In considering these claims, it must be remembered that our function is not to retry the case or pass upon the credibility of certain witnesses, but to decide only whether the findings under attack are reasonably supported by the evidence. Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985).

The trial court accepted the valuation of the husband’s radiological practice made by the wife’s expert witness, Arthur Sanders, a certified public accountant. He arrived at the values of $413,025 for the tangible assets of the practice and a range of $265,807 to $398,710 for the intangible asset of goodwill.

A

The husband disputes the value Sanders placed on one component of the tangible asset valuation, $289,898 for “machinery & equipment.” This figure, according to Sanders’ testimony, was calculated on the basis of the original cost of each item reduced by a percentage corresponding to the number of years during which it had been in use and the application of a “dollar converter” for the purpose of adjusting for inflation and eliminating the effect of accelerated depreciation in determining fair market value. The husband objected to the use of the dollar converter because Sanders did not know whether any governmental agency or trade organization had approved the figures used, which he had obtained from a monthly publication of an appraisal company. The schedule of dollar converter factors contained in this publication includes a caveat that they “should not be used in specific cases, as many variables make up the averages indicated. The mix of your plant’s physical, functional, and economic condition may produce a very different answer.” Sanders testified that this caveat was not applicable to a “medical office which has homogeneous type of equipment.” His valuation for the machinery and equipment item was $210,348 higher than the value stated in the husband’s financial affidavit.

On appeal the husband claims that the trial court never specifically ruled on his objection to the admissibility of the dollar converter schedule as part of Sanders’ report and, therefore, should not have relied on the valuation resulting from its use. It is true that the court reserved its ruling until after the wife’s counsel had “elicited [further] testimony from the witness” and that no explicit ruling appears to have been made later. The husband, however, never reminded the court of this oversight during the remainder of the trial. Furthermore, the court implicitly ruled that the dollar converter evidence was admissible by expressly stating in a further articulation of its decision that it had based its valuation of the medical practice on Sanders’ testimony.

With respect to the merits of the ruling and the court’s reliance on a valuation employing a dollar converter factor, the husband refers to nothing in the testimony critical of such a valuation technique except the caveat previously mentioned. The court was entitled to rely upon its own judgment of the competence and credibility of Sanders in deciding to accept his valuation of the tangible assets based on the use of a factor designed to allow for inflation and the distorting effect of accelerated depreciation in determining fair market value. There is nothing inherently improper in attempting to adjust equipment acquisition costs to current dollar values and to eliminate the distorting effect of depreciation in excess of the actual decline in the useful life of the equipment. Whether the allowances made by Sanders for these adjustments were accurate was a question of fact for the trier.

B

The husband is also critical of Sanders’ use of such accounting techniques as normalization of the income of a business in determining its fair market value by reducing certain expenses to amounts that a reasonably prudent investor would expect to pay for such items. Sanders “normalized” the annual costs of a CAT scanner used in the practice as if it had been purchased outright rather than leased, and concluded that, after allowing for financing expenses and depreciation, the annual lease payments of $134,784 paid for this equipment would have been reduced to $54,200 in 1988, if it had been purchased rather than leased. On this basis the net income of the radiological practice used in calculating the “goodwill” or intangible assets of the practice was increased by $50,584 in 1988. A similar procedure was used to reduce the actual net income of the husband from his practice, $387,594 in 1988, to a “reasonable compensation” level, $186,618 in 1988, based upon a schedule indicating the median earnings of radiologists throughout the nation. The effect of this reduction was to increase substantially the amount of income presumably attributable to the intangible assets of the practice and characterized as “excess earnings.” The income thus claimed to arise from the intangible assets was then capitalized to arrive at a valuation range of $679,000 to $812,000 for the “goodwill” of the practice.

The husband baldly asserts that the normalization of income technique with respect to restructuring the cost of the CAT scanner was improper. No expert testimony critical of this procedure is referred to nor does the husband cite any authority banning its use. He does not challenge the similar procedure of using excess earnings rather than actual earnings in evaluating the intangible assets. We conclude that there is nothing so unreasonable about the method used to restructure the income generated from the practice for the purpose of determining its fair market value as to preclude the trial court from accepting the valuation arrived at by Sanders as a basis for its decision.

C

The husband also claims that the evidence was inadequate to support a finding that one intangible asset of the practice, goodwill, which Sanders valued at $679,000 to $812,000, had any substantial value, in the absence of evidence of a market for the sale of the practice at a price approximating those figures. He relies upon several cases that have rejected the concept that the goodwill of a profession, such as the practice of medicine, is a divisible marital asset. Hanson v. Hanson, 738 S.W.2d 429, 435 (Mo. 1987) (professional goodwill in oral surgery practice is a marital asset subject to division, but must be distinguished from future earning capacity and cannot be evaluated by use of capitalization formulae as a substitute for fair market value evidence); Nail v. Nail, 486 S.W.2d 761, 764 (Tex. 1972) (practice of ophthalmologist is “no more than an expectancy wholly dependent upon the continuation of existing circumstances” and not a marital asset); Holbrook v. Holbrook, 103 Wis. 2d 327, 351-52, 309 N.W.2d 343 (Wis. App. 1981) (partnership interest of lawyer in goodwill of law firm not subject to division as a marital asset when partnership agreement provided that upon withdrawal a partner would be entitled only to his capital account). In each of those cases the trial court had assigned one half of the value found to represent the goodwill of the husband’s practice to his wife.

In the present case no such assignment was made, nor can any of the transfers of property to the wife or other awards ordered by the court be traced specifically to the value of the radiology practice, as distinguished from the husband’s other assets or his earning capacity. The court did state that it had considered the “Ml value” of the practice “in allocating family assets between the parties,” in response to the husband’s motion for articulation. The practice, however, was only one of nine components that were expressly identified as comprising the husband’s gross estate. The property ordered to be transferred to the wife consisted of the husband’s one half interest in the family home, one half of his twenty percent interest in a medical office building located in Waterbury, and $300,000 in lump sum alimony. According to his own affidavit, the husband’s net worth was approximately $1,400,000. The court found it was substantially higher, however, because several assets had been omitted, such as his interest in a pistachio nut farm in Iran, or had been undervalued, such as his radiology practice. The financial awards made by the court appear to have been based on an estimate of the husband’s total wealth, enhanced by the value attributed to the element of goodwill, and his future income.

Nevertheless, because the trial court accepted Sanders’ estimate of $679,000 to $812,000 for the goodwill of the husband’s practice, it is probable that the financial awards to the wife would have been reduced if the court had not included the substantial value it placed on goodwill in calculating the husband’s wealth. Accordingly, we must decide whether the goodwill of the husband’s practice was properly considered as relevant to the financial awards and whether the capitalization of excess earnings technique was appropriate for determining the value of such goodwill.

It can hardly be doubted that the increment of value, loosely termed goodwill, that arises from the established reputation of a business for the quality of its goods or services may often be found to enhance the value of professional as well as other enterprises by increasing their ability to attract patrons. Relatively few courts have wholly rejected consideration of the goodwill of a professional practice in determining the value of the property held by the parties in a dissolution action. Powell v. Powell, 231 Kan. 456, 463, 648 P.2d 218 (1982) (medical practice personal to husband and not subject to division in divorce action); Nail v. Nail, supra; see 38 Am. Jur. 2d, Good Will § 8. Several courts have recognized that the goodwill of an established practice may have value, but disapprove of the capitalization of excess earnings method of valuation, insisting upon evidence of value based on comparable sales or partnership withdrawal agreements. Hanson v. Hanson, supra; Holbrook v. Holbrook, supra. Most courts, however, have approved the capitalization approach to valuation as permissible. Re Marriage of Hull, 219 Mont. 480, 712 P.2d 1317, 1322 (1986); Taylor v. Taylor, 222 Neb. 721, 729, 386 N.W.2d 851 (1986); Dugan v. Dugan, 92 N. J. 423, 439-41, 457 A.2d 1 (1983); Hurley v. Hurley, 94 N.M. 641, 644, 615 P.2d 256 (1980); Re Marriage of Hall, 103 Wash. 2d 236, 244, 692 P.2d 175 (1984).

We agree with the cases that recognize that goodwill may constitute an element of value distinct from the tangible assets of a medical practice. Its value, however, must be determined on the basis of the price that a willing buyer would pay in excess of the tangible assets to acquire the practice. Obviously, the most persuasive evidence of such value would be prices obtained in comparable sales of similar medical practices, if sufficient information of that kind can be found. We reject the notion that professional goodwill may be evaluated without consideration of the saleability of the practice and the existence of a market for its purchase. See contra Dugan v. Dugan, supra, 434; Re Marriage of Hall, supra, 242. To the extent that the goodwill of the practice cannot be detached from the personal reputation and ability of the practitioner through a sale, it cannot be said to have any significant market value, even though it may enhance the earning power of the practitioner so long as he continues to work in the same community. “[I]f goodwill depends on the continued presence of a particular individual, such goodwill, by definition, is not a marketable asset distinct from the individual.” Taylor v. Taylor, supra, 731. A valuation method that does not differentiate between the goodwill of the practice as a saleable entity and the practitioner’s own earning power as enhanced by such goodwill may well result in counting the same basis for a financial award in dissolution cases twice, once as an asset of his estate subject to allocation and again, as a component of his earning capacity forming the basis for alimony.

In theory, at least, the capitalization of excess earnings method of evaluating goodwill seeks to determine the price a prospective purchaser would pay to acquire the stream of income in excess of the amount he would expect to earn by engaging in the profession through other avenues. In economic terms, if radiologists were so scarce that the demand for such services overwhelmed the supply, there would be little advantage in buying an established practice at a substantial price for the goodwill component rather than establishing a new practice. The supply-demand relationship is theoretically reflected in both components of the capitalization formula, the determination of excess earnings and the capitalization factor. Thus the formula is related to market value, but provides an alternative to the comparable sales method for determining that value. The difficulty lies not in the theory but in its application, particularly with respect to the basis for calculating the amount of excess income and selecting the capitalization rate. Although evidence of comparable sales would ordinarily be more persuasive, we hold that capitalization of excess income is a permissible method for determining the value of the goodwill of a professional practice, despite difficulties in its application. We have previously approved the capitalization of projected net income as a permissible accounting technique for determining the value of a closely held corporation characterized as a “one-man” business. Turgeon v. Turgeon, 190 Conn. 269, 272-77, 460 A.2d 1260 (1983).

In the present case, Sanders testified that his objective was to determine the fair market value of the practice. He had obtained information from an organization that “actually monitors practices that are sold, including radiological practices.” Seventeen such practices had been sold, including five in Connecticut. These were hospital-based practices, however, and the estimated value of the goodwill was predicated on gross receipts. Applying that method of valuation to the husband’s practice would have resulted in a goodwill valuation of “probably double” the range of value determined by the capitalization method.

There were other radiologists in Waterbury, but when Sanders had called the local hospital several times on the pretext of seeking a radiologist who could perform a CAT scan, the only name given to him was that of the husband or the name he used for his radiology practice, Diagnostic Imaging Associates. Sanders testified that most of the patients who sought the husband’s services had been referred by other doctors and that the close personal relationship likely to develop between a patient and treating physician, such as a pediatrician or obstetrician, was less prevalent in the practice of radiology. Another radiologist intending to purchase the husband’s practice would probably be able to retain “at least 90 to 95 percent of the practice,” provided that the husband worked a period of three to six months with the successor so that referring physicians would become acquainted with him. If the sale were made to the radiologist presently associated as an employee with the husband, a substantial portion of the gross earnings could readily be transferred.

From this testimony the trial court could reasonably have concluded that there was an element of goodwill in the husband’s practice that was saleable to other radiologists seeking to increase their income, that such a buyer could make reasonable arrangements relating to the transfer that would assure the retention of most of the volume of business being presently transacted, and that the relatively limited market for the sale of such a practice was fairly reflected in the modest capitalization factors of 1.5 and 2 used by Sanders to make his valuation. In relying on this testimony, the court did not exceed the bounds of its discretion as trier of the facts.

D

The remainder of the husband’s attack on the valuation of his assets is related to the court’s itemization of the “gross value of the [husband’s] estate” and “the principal components of said estate,” as requested in the husband’s motion for articulation. The court never determined the total value of the estate, but simply listed items comprising the estate, some of which were valued specifically and others simply identified without stating values. No further motion to clarify this response was filed nor was any motion for review presented to this court. See Practice Book § 4054.

As one item of such “gross value,” the court referred to “the admission of the [husband] to the [wife] of the value of his interest in the pistachio nut farm located in Iran of $1,000,000.” Apparently the only basis for this response was the testimony of the wife that during a visit to Iran “prior to the fall of the Shah,” her husband “wanted to sell [the farm] for over a million dollars at that time.” The husband contends that the “cataclysmic social, political and religious upheaval in Iran” that has occurred since their visit renders this basis for a current valuation of his interest in the Iranian farm quite problematic.

When the husband testified, however, although he had retained his Iranian citizenship after he had become a United States citizen and although members of his family continued to live on the farm, he gave no opinion as to its value, having failed to mention the farm in his financial affidavit. We do not regard the court’s reference to the husband’s admission, however, as a finding of the present value of his interest in the farm, but rather as an indication that it had substantial value. The court was justified in drawing at least that inference from the failure of the husband to produce some evidence of the value of his interest in the farm to contradict the effect of his wife’s testimony.

Another item found by the court to constitute part of the husband’s gross estate was his Keogh plan retirement account, which was valued at $371,870 instead of $267,467, as stated in his financial affidavit. The difference of $104,403 is attributable to the allowance made in the affidavit for an accrued income tax liability. The motion for articulation, however, sought the “gross value” of the husband’s estate as found by the court, not its net value. Accordingly, the court’s valuation of the retirement account without allowing for taxes was an appropriate response to the inquiry and was consistent with its valuation of the other items, which are listed at gross values without allowing for taxes.

The remaining claims of error with respect to the valuation of the husband’s assets do not warrant further discussion because they are without merit.

IV

The trial court, in addition to its other orders, awarded the wife $25,000 for counsel fees and also directed the husband to reimburse her for expert witness fees totaling $23,230. The husband contests these awards on the ground that the wife had substantial liquid assets that were adequate for the payment of these expenses, when the value of the assets listed in her financial affidavit is combined with the value of the financial awards.

The court is authorized by General Statutes § 46b-62 in an action for dissolution of marriage to “order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82.” The criteria referred to are those that also govern awards of alimony: “the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties” and also any assignments of property made pursuant to General Statutes § U6b-81. General Statutes § 46b-82. It is clear, therefore, that the court must consider the effect of its other financial orders in awarding counsel fees.

In Koizim v. Koizim, 181 Conn. 492, 501, 435 A.2d 1030 (1980), we declared that “[wjhere, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so.” The husband claims that Koizim precludes the award of counsel fees in this case because the plaintiff’s affidavit showed approximately $95,000 of bank deposits and securities, which, when added to the $300,000 lump sum alimony award, would be sufficient to pay these expenses. The total sum of the wife’s liabilities as shown in her affidavit, however, was $70,650, including $42,000 for counsel fees incurred before trial. An additional $32,000 was sought as counsel fees incurred during the trial. The $300,000 award, nevertheless, would be more than adequate to pay the wife’s liabilities and litigation expenses.

If inability to pay one’s own counsel fees were the only circumstance justifying an award, it is clear that the wife would not qualify. In Arrigoni v. Arrigoni, 184 Conn. 513, 519-20, 440 A.2d 206 (1981), we clarified Koizim by stating that “we did not mean to imply that no allowance should be made if a party has sufficient cash to meet an attorney’s bill,” pointing out that Koizim was based on the circumstance that the recipient of the counsel fee award had “ ‘ample liquid funds.’ ” (Emphasis added.) “If . . . the trial court concludes, based on the total financial resources of the parties, that denying an award of counsel fees would undermine its prior financial orders, then it may award counsel fees to the requesting party.” Fitzgerald v. Fitzgerald, 190 Conn. 26, 34, 459 A.2d 498 (1983). In this case the court explicitly stated that “[t]he award of counsel fees is justified and any denial would be an abuse of discretion by substantially undermining her other awards.”

Since the trial court fashioned the other financial awards, it was uniquely qualified to determine whether those awards would be undermined by rejecting the wife’s request for counsel fees and expenses. All the awards were made at the same time and were predicated on the assumption that the total of all the awards regardless of the items to which they were apportioned, was reasonable in the light of the respective financial abilities of the parties and the criteria set forth in § 46b-82. The evidence in this case, which includes a thirty year marriage, substantial continuing medical expenses because of the wife’s poor health, the clear responsibility of the husband as the cause of the marital breakdown, and the great disparity in the income and assets of the parties, provides adequate support for the court’s conclusion that an appropriate allowance for counsel fees and litigation costs should be made so that the other orders would not be undermined.

The judgment is affirmed.

In this opinion the other justices concurred.

       Practice Book § 220 (A) (1) provides as follows: “Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of Sec. 218 and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
      “(A) (1) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.”

       “[Practice Book] Sec. 228. [REQUESTS FOR PRODUCTION, INSPECTION AND EXAMINATION]—RESPONSES TO REQUESTS FOR PRODUCTION; OBJECTIONS
      “The party to whom the request is directed or his attorney shall serve a written response within thirty days after the date of certification of service, in accordance with Sec. 120, of the request on the responding party

       Practice Book § 231 provides: “If any party has failed to answer interrogatories or to answer them fairly . . . the court may, on motion, make such order as the ends of justice require.
      “Such orders may include the following:
      “(a) The entry of a nonsuit or default against the party failing to comply;
      “(b) The award to the discovering party of the costs of the motion, including a reasonable attorney’s fee;
      “(c) The entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
      “(d) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence;
      “(e) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal.
      “The failure to comply as described in this section may not be excused on the ground that the discovery is objectionable unless written objection as authorized by Secs. 222, 226, and 229 has been filed.”

       If the will were not upheld, the estate would be divided among the three children of the decedent, including the wife. She testified that in such event she estimated that her share of the estate would be $80,000, but it is not clear whether this estimate included an allowance for her attorney’s fees.

       In response to an inquiry in the motion for articulation requesting the amount found to be “the gross value of the [husband’s] estate” and its “principal components,” the trial court responded as follows: “(F) Value consisted of: (1) that contained in the financial affidavit of the defendant; (2) the admission of the defendant to the plaintiff of the value of his interest in the pistachio nut farm located in Iran of $1,000,000.00; (3) sums diverted from his practice (unlisted and unreported to the IRS); (4) monetary and non-monetary (O’Neill v. O’Neill, 13 Conn. App. 300, 307 [536 A.2d 978 (1988)]) contributions of the plaintiff under General Statutes Section 46b-81; (5) Keogh plan to be listed at $371,870.00 instead of amount in financial affidavit; (6) unreported additional income earned by the defendant in 1988; (7) real estate at 1389 West Main Street between $4,000,000.00 and $4,300,000.00, subject to mortgage of $2,500,000.00 now has 20% interest in unsold condominiums; (8) value of [the] defendant’s professional practice and earning capacity of the defendant Diagnostic Imaging Associates as contained in memorandum of decision, page 5, paragraph 7; (9) additional sums contained in financial statements to First Federal Savings and Loan as shown in exhibits on file.”

       See footnote 5, supra.