text:
    State of Connecticut v. Enrique C. Gonzalez
    (13442)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.
    Argued January 5
    decision released March 21, 1989

      Robert P. Dutcher, for the appellant (defendant).

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, was Frank Iannotti, former assistant state’s attorney, for the appellee (state).
   Glass, J.

The dispositive issue in this case is whether, under General Statutes (Rev. to 1985) § 14-227a, a defendant charged with operating a motor vehicle while under the influence of alcohol or drugs is entitled to a jury instruction on the lesser offense of operating while impaired as set forth in General Statutes (Rev. to 1985) § 14-227a (b). The defendant, Enrique C. Gonzalez, was found guilty by a jury of operating a motor vehicle in violation of General Statutes (Rev. to 1985) § 14-227a (a). In State v. Gonzalez, 14 Conn. App. 216, 541 A.2d 115 (1988), the Appellate Court rejected the defendant’s claim that the trial court erred in denying his request for an instruction on the lesser offense of operating while impaired. We granted the defendant’s petition for certification limited to the following issues: “Did the Appellate Court erroneously conclude (1) that General Statutes § 14-227a (b) (Rev. to 1985) provides that one commits the offense of driving while impaired only when one’s blood alcohol ratio falls between .07 and .1 percent, and (2) that driving while impaired is not a lesser included offense of driving while under the influence?” We affirm the Appellate Court’s judgment.

The facts are fully set forth in State v. Gonzalez, supra. In brief, on the night of June 21,1985, the Connecticut state police were conducting a “spot check” for drunk drivers at the West Haven toll plaza on Interstate 95. At approximately 11 o’clock, the defendant pulled into the toll plaza in the eastbound lane. State police trooper Robert Peterson detected a strong odor of alcohol emanating from the defendant, and directed him to drive his car to an adjacent parking lot. At the trial, Peterson testifed that the defendant’s walk was unsteady, his speech slurred, his eyes glassy, and his face flushed. Peterson conducted four field sobriety tests, including a test requiring the defendant, who claimed he knew English, to recite the alphabet in English and Spanish. The defendant was unable to recite the alphabet in either language. Peterson con-eluded from the defendant’s performance of the tests that he was intoxicated, and placed him under arrest for operating while under the influence in violation of General Statutes (Rev. to 1985) § 14-227a (a). After the defendant had been advised of his rights, he told Peterson that he had consumed six beers and one half pint of rum on his drive from New York City to the toll plaza. Peterson testified that he had observed several empty beer cans and an empty rum bottle on the front seat of the defendant’s car. There was no evidence of the defendant’s blood alcohol content admitted at the trial.

The defendant testified that he had driven his girlfriend from Wallingford to New York City and was returning home at the time he was stopped. He admitted that he had consumed some alcohol during the course of his trip down to New York, but claimed that he had not consumed any on the return trip and, further, that there were no empty alcohol containers in his car. He also testified that he had not told Peterson anything about having been drinking. He further stated that the alcohol he had consumed had not affected his driving and that he had walked without stumbling or swaying. The defendant’s sister testified that the defendant had called her between 11:00 and 11:30 p.m. and had asked her to come to the toll plaza parking lot. She testified that when she arrived there, between midnight and 12:30 a.m., the defendant did not appear to be under the influence of alcohol.

I

The defendant submitted a request to the trial court to charge the jury on the lesser offense of operating while impaired and on the meaning of “impaired by the consumption of intoxicating liquor.” General Statutes (Rev. to 1985) § 14-227a (b). The trial court declined to instruct the jury as requested. The defendant was convicted as charged and sentenced to ninety days of imprisonment, execution suspended, two years of probation, and a $1000 fine, plus fees and costs.

The test for determining whether a defendant is entitled to an instruction on a lesser offense is well established. “A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (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) the evidence, introduced by either the state or the defendant, or by a combination of their proofs, 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. State v. Whistnant, 179 Conn. 576, 584, 427 A.2d 414 (1980).” State v. Tinsley, 181 Conn. 388, 396-97, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981).

In the present case, a majority of the Appellate Court concluded that the trial court did not err in denying the defendant’s request for a lesser offense instruction. It held that a prosecution for the offense of operating while impaired under § 14-227a (b) is only warranted when evidence exists that the defendant’s blood alcohol ratio at the time of the alleged offense was greater than .07 percent but less than .1 percent. State v. Gonzalez, supra, 222. It ruled, therefore, that the defendant’s claim failed the third prong of the Whistnant test since there was no evidence of the defendant’s blood alcohol to justify a conviction under § 14-227a (b). Id., 222-23.

As a predicate to his claim that operating a motor vehicle while impaired under § 14-227a (b) is a lesser included offense of operating while under the influence under § 14-227a (a), the defendant argues that the Appellate Court erred in concluding that driving while impaired under subsection (b) can be proven only with evidence that the defendant’s blood alcohol ratio falls between .07 and .1 percent. He claims that the language of subsection (b), which prohibited a person from operating a motor vehicle “while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor,” proscribed behavior, and, therefore, a violation of subsection (b) may be proven with behavioral evidence alone. As a corollary to this point, the defendant contends that, because subsection (b) did not require proof of a blood alcohol content within the proscribed range, a defendant could be convicted for violating this section upon proof that his driving was “impaired” in any degree. We disagree.

In analyzing the import of a statute, we first look to its plain language. Where that language is clear and unambiguous, there is no need for interpretation and, hence, no need to resort to extrinsic sources as an aid to interpretation. See, e.g., Nicotra Wieler Investment Management, Inc. v. Grower, 207 Conn. 441, 455, 541 A.2d 1226 (1988). Our task is to construe a statute as a whole and to harmonize its disparate sections within the bounds of reason. See, e.g., University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 399, 512 A.2d 152 (1986). Further, “[cjriminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant.” State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986).

In reviewing the language of § 14-227a, several distinguishing features between the offense of operating while under the “influence” and the offense of operating while “impaired” are immediately apparent. Operating under the influence was prohibited by § 14-227a (a), which provided that “[n]o person shall operate a motor vehicle . . . while under the influence of intoxicating liquor or any drug or both.” Subsection (b) provided that “[n]o person shall operate a motor vehicle . . . while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor. A person shall be deemed impaired when at the time of the alleged offense the ratio of alcohol in the blood of such person was more than seven-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight.” Here, we note the obvious absence of any language specifically defining the factor “deemed” to constitute “under the influence” in subsection (a).

General Statutes (Rev. to 1985) § 14-227a (c) provided for the admissibility, under certain specified conditions, of blood alcohol content evidence in any prosecution for violating subsection (a) or (b). Under subsection (c) (7), chemical analysis evidence in a prosecution for operating while under the influence was admissible provided that “additional competent evidence is presented bearing on the question of whether or not the defendant was under the influence of intoxicating liquor or drug or both.” Here, we note that this “additional competent evidence” provision was conspicuously omitted as a requirement in a prosecution under subsection (b), the operation while impaired subsection. Thus, unlike a prosecution for operating while under the influence, in order to admit blood alcohol content evidence in a prosecution for operating while impaired, subsection (c) did not require the production of additional competent evidence.

General Statutes (Rev. to 1985) § 14-227a (d) provided for the evidentiary effect of different ratios of blood alcohol content. There are two aspects of this subsection critical to our analysis. First, subsection (d) (3) provided that evidence of a blood alcohol content greater than .07 percent but less than .1 percent “shall constitute impairment within the meaning of this section.” There were no other references to the term “impairment” in subsection (d). Second, subsection (d) (2) provided that evidence of a blood alcohol content greater than .05 percent but less than .1 percent would not give rise to any presumption “that the defendant was or was not under the influence of intoxicating liquor but such fact may be considered with other competent evidence in determining whether the defendant was under such influence within the meaning of this section.” There was no such provision contemplating the use or need of “other competent evidence” in subsection (d) (3) pertaining to “impairment.”

A reading of subsections (a) through (d) of § 14-227a makes it clear that the language “deemed impaired” of subsection (b) and “shall constitute impairment” of subsection (d) attached an exclusive definitional effect to the term “impairment” as used in § 14-227a. Further, the admission and consideration of “additional competent evidence” only applied to prosecutions for operating under the influence under subsection (a). Consequently, a defendant could be convicted of operating while “impaired” only when evidence was introduced demonstrating that the defendant’s blood alcohol content was greater than .07 percent and less than .1 percent. Because the offense of operating while “impaired” was defined, by operation of the terms “deemed” and “shall constitute,” as operating while one’s blood alcohol content fell within the proscribed range, and because the statute contemplated that “additional competent evidence” was necessary only in a prosecution for operating while under the influence, it necessarily follows that “competent evidence” additional to evidence of the defendant’s blood alcohol content at the time he or she operated the motor vehicle was immaterial in a prosecution for operating while “impaired” under subsection (b).

The defendant’s assertion that one could be proven to be “impaired” on the basis of “other competent evidence,” and, therefore, one could violate subsection (b) if one’s ability to drive is impaired in any degree, requires an unduly broad reading of subsection (b). Such a reading contravenes the principle that criminal statutes are to be narrowly construed. State v. McGann, supra.

II

The defendant also argues that the Appellate Court’s conclusion is irreconcilable with: (A) General Statutes (Rev. to 1985) § 14-227a (f); (B) General Statutes (Rev. to 1985) § 14-227b, the “implied consent law”; and (C) our opinion in State v. Hancich, 200 Conn. 615, 513 A.2d 638 (1986). We consider each of these arguments below.

A

The defendant contends that the Appellate Court’s reading of General Statutes (Rev. to 1985) § 14-227a (b) is inconsistent with § 14-227a (f). Subsection (f) provided that evidence of a defendant’s refusal to submit to a blood alcohol test was admissible in prosecutions for either operating while under the influence or operating while impaired. The defendant queries: why would the legislature authorize the use of an adverse inference from a defendant’s failure to submit to a test if it did not contemplate that evidence other than blood alcohol content evidence would suffice to convict him of operating while impaired?

The Appellate Court attempted to explain subsection (f) by stating: “It is . . . likely . . . that the legislature knew that blood alcohol evidence which indicates impairment may come from sources other than a test administered by the police, such as a test conducted by a medical expert at the defendant’s request. Impairment could thus be established even though the defendant elected not to take the test provided by the police.” State v. Gonzalez, supra, 223-24 n.4.

Whatever the merits may be of the Appellate Court’s explanation, we are not persuaded that the language of subsection (f) undercuts the unmistakable intent of the legislature as expressed in subsections (a) through (d) that operating while impaired exclusively meant operating while one’s blood alcohol ratio fell within the proscribed range. Because subsection (f) presents us with an ambiguity, an analysis of the pertinent legislative history is in order. Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986).

The relevant provisions of General Statutes (Rev. to 1985) § 14-227a originated in 1983 in Substitute House Bill No. 6420. See State v. Gonzalez, supra, 225-33 (Bieluch, J., dissenting) (analyzing legislative history); Public Acts 1983, No. 83-534. The bill initially provided that the offense of operating while impaired was committed when a person operated a motor vehicle while his or her blood alcohol content was .05 percent or more but less than .1 percent. Significantly, the bill also required that “additional competent evidence [must be] presented indicating that . . . the ability of such person to operate . . . was impaired by the consumption of intoxicating liquor.” The bill further provided for the admission into evidence of a defendant’s refusal to take a blood alcohol test in prosecutions for either operating while under the influence or operating while impaired.

Subsequently, House amendment schedule “A” made the following changes: (1) the floor of the blood alcohol content to establish operating while impaired was raised from at least .05 percent to greater than .07 percent; (2) the “additional competent evidence” provision was struck and the present language that operating with the proscribed blood alcohol content would be “deemed impaired” was added; and (3) a defendant’s refusal to submit to a test was now admissible only in prosecutions for operating under the influence. 26 H.R. Proc., Pt. .19,1983 Sess., pp. 6692-94. Thereafter, however, House amendment schedule “D” restored the original bill’s provision allowing for the admissibility of evidence of a defendant’s refusal to submit to a test in prosecutions both for operating while under the influence and for operating while impaired. 26 H.R. Proc., Pt. 19, 1983 Sess., p. 6725. As the dissenting opinion below correctly notes, the proceedings contain no explanation for the reappearance of this provision. State v. Gonzalez, supra, 227-28 {Bieluch, J., dissenting). The House of Representatives, however, subsequently rejected a further amendment, schedule “L,” which would have made the designated blood alcohol content “prima facie evidence” of operating while impaired, replacing the “shall constitute impairment” language that became part of subsection (d). Further, schedule “L” would have restored the original language requiring “additional competent evidence” in a prosecution for operating while impaired. 26 H.R. Proc., Pt. 19, 1983 Sess., p. 6820.

The Senate’s proceedings respecting Public Acts 1983, No. 83-534, shed little light on the purpose of the provision in subsection (f) allowing the admission into evidence of a defendant’s refusal to submit to a test in a prosecution for operating while impaired. The only relevant comment comes from Senator Owens, who remarked: “It makes the defendant’s refusal to submit to a chemical test admissible in court, something that the United States Supreme Court said there was nothing wrong with and made laudatory.” 26 S. Proc., Pt. 13,1983 Sess., p. 4426, remarks of Senator Howard T. Owens, Jr.

Our review of the history of Public Acts 1983, No. 83-534, makes it quite clear that the legislature did not intend to make operating while impaired an offense requiring proof of behavior additional to proof of blood alcohol content. This history demonstrates that the house twice rejected a proposal that would have required “additional competent evidence” in a prosecution for operating while impaired. Although the history of subsection (f) is unilluminating, we cannot conclude, in the face of overwhelming evidence to the contrary, that the legislature, by virtue of making a defendant’s refusal to submit to a chemical test admissible in a prosecution for operating while impaired, intended that a defendant could be convicted of that offense on any proof other than proof of blood alcohol content.

B

The defendant also asserts that the Appellate Court’s analysis of § 14-227a (b) is irreconcilable with General Statutes (Rev. to 1985) § 14-227b, the “implied consent” law. Subsections (b) through (d) of § 14-227b established that any person arrested for operating while under the influence or operating while impaired who refused to submit to a blood alcohol content test would lose his or her driver’s license for a period of six months. Under subsection (d), the commissioner of motor vehicles was required to suspend the license upon receipt of a police officer’s report disclosing the operator’s refusal to submit to the test. Subsection (c) provided that “[t]he report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for operating a motor vehicle while under the influence ... or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor . . . . ” The defendant, relying on the. dissenting opinion below, argues that “[s]uch a sworn report and administrative finding of probable cause for arrest in the event of a blood alcohol test refusal must of necessity relate to an arrest for operation while impaired based upon facts other than the proscribed blood alcohol percentages.” State v. Gonzalez, supra, 233 (Bieluch, J., dissenting).

The defendant’s reliance on § 14-227b is misplaced. As the state correctly points out, this statute dealt with the administrative requirements for suspending an operator’s license upon his refusal to submit to a chemical analysis. Subsection (c)’s requirement of a sworn report establishing the arresting officer’s probable cause did not purport to be anything more than a prerequisite to the distinct administrative action of suspending the operator’s license. It had nothing to do with a prosecution for the substantive offense of driving while impaired as defined in § 14-227a.

C

The defendant also argues that in State v. Hancich, supra, 620, this court interpreted the “deemed impaired” provision of General Statutes (Rev. to 1985) § 14-227a (b) as an evidentiary tool for presuming legal impairment and not as a means of defining the offense. He claims, therefore, that subsection (b) permits a conviction in the absence of blood alcohol content evidence.

In Hancich, the defendant was charged under subsection (a) with driving under the influence. The trial court refused to instruct the jury on the lesser offense of driving while impaired. Id., 619. We first observed that General Statutes (Rev. to 1985) § 14-227a (d) (4) created a rebuttable presumption that a person was under the influence of intoxicating liquor if that individual’s blood alcohol level equalled or exceeded .1 percent. Id., 620-21. “While evidence of such an alcohol level was sufficient to establish the state’s prima facie case, the defendant was formerly allowed to introduce evidence to show that, despite a blood alcohol level equal to or greater than .1 percent, he or she had not been under the influence of intoxicating liquor at the time of arrest.” (Emphasis in original.) Id., 621. We deduced from this fact the proposition that “although in the present case the defendant’s blood alcohol level was measured at .165 percent, the possibility that she was merely impaired, and not under the influence, cannot be excluded as a matter of law under the former General Statutes § 14-227a (d) (4).” Id. We held, however, that the evidence of the defendant’s intoxication “was such as to exclude completely the possibility that the defendant was not under the influence of intoxicating liquor, and operated her vehicle while merely impaired;” id., 621-22; although we noted that “[i]f this were at all a close case, then we might be concerned with the trial court’s refusal to instruct on the lesser offense of impairment.” Id., 621. Consequently, we determined that the defendant was not entitled to a lesser included offense instruction under State v. Whistnant, supra. State v. Hancich, supra, 622.

As the defendant conceded at oral argument, because we concluded in Hancich that the defendant was not entitled to a lesser included offense instruction under Whistnant, our observation that “the possibility that [Hancich] was merely impaired, and not under the influence, cannot be excluded as a matter of law” was dictum. Consequently, Hancich is not controlling in the present case.

Because General Statutes (Rev. to 1985) § 14-227a (b) may be proven only by evidence that the defendant’s blood alcohol content at the time of the alleged offense was greater than .07 percent and less than .1 percent, and because there was no evidence introduced concerning the defendant’s blood alcohol content, a lesser offense instruction of operating while impaired was not warranted. State v. Whistnant, supra.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       In this opinion, our analysis is confined to the provisions of General Statutes §§ 14-227a and 14-227b as revised to 1985.

       General Statutes (Rev. to 1985) § 14-227a (b) provides: “No person shall operate a motor vehicle on a public highway of this state or an any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property while Ms ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor. A person shall be deemed impaired when at the time of the alleged offense the ratio of alcohol in the blood of such person was more than seven-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight.”

       General Statutes (Rev. to 1985) § 14-227a (a) provides: “No person shall operate a motor vehicle on a public highway of this state or any any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property while under the influence of intoxicating liquor or any drug or both.”

       See footnote 3, supra.

       See footnote 2, supra.

       General Statutes (Rev. to 1985) § 14-227a (c) provides: “In any criminal prosecution for a violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol or drug in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent provided: (1) The defendant consented to the taking of the test upon which such analysis is made; (2) a true copy of the report of the test result was mailed to or personally delivered to the defendant within twenty-four hours or by the end of the next regular business day, after such result was known, whichever is later; (3) the test was performed according to methods and with equipment approved by the department of health services and was performed by a person certified or recertified for such purpose by said department or recertified by persons certified as instructors by the commissioner of health services. If a blood test is taken, it shall be on a blood sample taken by a person licensed to practice medicine and surgery in this state, a qualified laboratory technician, an emergency medical technician II or a registered nurse; (4) the device used for such test was checked for accuracy at the beginning of each workday and no later than the end of each workday by a person certified by the department of health services; (5) the defendant was afforded an opportunity to have an additional chemical test performed and was informed of this right, afforded a reasonable opportunity to exercise the same and a notation to that effect was made upon the records of the police department, provided the results of the initial test shall not be excluded under this subsection if the police made reasonable efforts to have such additional test performed and such test was not performed within a reasonable time; (6) evidence is presented which demonstrates that the test results accurately reflect the blood alcohol content at the time of the alleged offense, and (7) in the case of a prosecution under subsection (a) of this section, additional competent evidence is presented bearing on the question of whether or not the defendant was under the influence of intoxicating liquor or drug or both.”

       General Statutes (Rev. to 1985) § 14-227a (d) provides: ‘‘Evidence admitted under the provisions of subsection (c) shall have the following force and effect: (1) Evidence that at the time of the alleged offense there was five-hundredths of one per cent or less of alcohol, by weight, in the defendant’s blood shall be prima facie evidence that the defendant was not under the influence of intoxicating liquor within the meaning of this section; (2) evidence that at such time the ratio of alcohol in the blood was more than five-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight, shall not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor but such fact may be considered with other competent evidence in determining whether the defendant was under such influence within the meaning of this section; (3) evidence that at such time the ratio of aleohoi in the blood was more than seven-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight, shall constitute impairment within the meaning of this section; (4) evidence that at such time the ratio of alcohol in the blood was ten-hundredths of one per cent or more of alcohol, by weight, shall be prima facie evidence that the defendant was under the influence of intoxicating liquor within the meaning of this section.”

       General Statutes (Rev. to 1985) § 14-227a (f) provides: “In any criminal prosecution for a violation of subsection (a) or (b) of this section, evidence that the defendant refused to submit to a blood, breath or urine test requested in accordance with section 14-227b shall be admissible provided the requirements of subsection (b) of said section have been satisfied. If a case involving a violation of subsection (a) of this section is tried to a jury, the court shall instruct the jury as to any inference that may or may not be drawn from the defendant’s refusal to submit to a blood, breath or urine test.”

       See footnote 10, infra.

       The relevant portions of General Statutes (Rev. to 1985) § 14-227b provide: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine ....
      “(b) If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor . . . refuses to submit to the designated test, the test shall not be given. . . . The police officer shall make a notation upon the records of the police department that he informed the person that his license or nonresident operating privilege would be suspended if he refused to submit to such test.
      “(c) If the person arrested refuses to submit to such test or analysis, the police officer shall immediately revoke the [license] of such person for a twenty-four hour period and prepare a written report of such refusal. . . . The report shall be . . . sworn to under penalty of false statement . . . by the police officer before whom such refusal was made. The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so.
      “(d) Upon receipt of such report of a first refusal, the commissioner of motor vehicles shall suspend any license ... of such person for a period of six months. Any person whose license or operating privilege has been suspended . . . shall automatically be entitled to an immediate hearing before the commissioner. ...”

       See footnote 7, supra.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Harold Jeffrey Darak v. Robyn Gale Darak
    (13530)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.
    Argued February 1
    decision released March 21, 1989

      Dominick J. Thomas, Jr., with whom was Catherine E. Teitell, for the appellant (defendant).

      Deborah S. Chang, with whom, on the brief, was David J. Elliott, for the appellee (plaintiff).
   Peters, C. J.

The principal issue in this appeal is whether a statutory change in the principles governing modification of matrimonial financial orders applies immediately to any motion for modification filed after the effective date of the act or applies only prospectively to dissolution decrees entered after its effective date. Subsequent to the effective date of Public Acts 1987, No. 87-104 (the act), the defendant, Robyn Gale Darak, moved the trial court to modify her award of alimony and child support in light of the changed financial circumstances of the plaintiff, Harold J. Darak. This motion was initially granted, but ultimately denied, on the trial court’s ruling that the parties had contemplated the changed circumstances and that the new act, which eliminated this consideration, applied prospectively only. The defendant appealed to the Appellate Court and we transferred the appeal here pursuant to Practice Book § 4023. We find error in part of the trial court’s judgment.

The underlying facts' are undisputed. The trial court, Nash, J., dissolved the three and one-half year marriage between the plaintiff and the defendant on December 3,1986. Pursuant to the parties’ dissolution agreement, the trial court granted custody of the couple’s minor child to the defendant and directed the plaintiff to pay the defendant $125 per week in unallocated alimony and child support. At the time of the dissolution, the plaintiff earned $798.08 weekly ($549.14 net) and the defendant earned $125 weekly ($122.18 net).

On October 23,1987, the defendant moved the trial court to modify its alimony and child support order because of a substantial improvement in the plaintiff’s financial situation. After a hearing at which the parties submitted financial affidavits, the trial court, Damiani, J., found that a substantial change in financial circumstances had indeed occurred, the plaintiff’s earnings having significantly risen, while those of the defendant had diminished. The court also found, however, that the parties had contemplated the income increase at the time of the dissolution.

The trial court initially ruled that, by virtue of the enactment of Public Acts 1987, No. 87-104, the defendant was entitled to a modification, despite the fact that the change in financial circumstances had been contemplated at the time of the dissolution. The court acknowledged that, under this court’s interpretation of General Statutes § 46b-86 (a), prior to its 1987 amendment, no such modification would have been allowable. Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976). As amended by the new act, however, § 46b-86 (a) now permits a modification without regard to prior contemplation of financial changes. The court held the new act to be procedural and remedial and hence applicable to the defendant’s motion for modification because her motion had been filed after the effective date of the new act. The court rejected the plaintiff’s argument that the act should only apply to dissolution decrees entered after its effective date. In accordance with its ruling granting the motion for modification, the court, on December 18, 1987, entered new monetary orders for child support of $150 per week and alimony of $100 per week. Thereafter, the court awarded the defendant an allowance of $2000 in attorney’s fees to defend against an appeal taken by the plaintiff from the trial court’s ruling.

During the pendency of the plaintiffs appeal, he moved the trial court to reconsider its ruling that the act applies retrospectively. In response, the defendant moved for reconsideration of the finding that the parties had contemplated the change in financial circumstances.

On March 31,1988, the trial court granted the plaintiff’s motion for reconsideration and, upon reconsideration, reversed its previous decision and denied the defendant’s motion for modification. Relying on the Appellate Court’s intervening decision in LaBow v. LaBow, 13 Conn. App. 330, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988), the trial court concluded that the act should apply only prospectively. The trial court denied the defendant’s motion to reconsider its finding of contemplation. The court further ordered that the plaintiff was entitled to a credit of $5 per week to make up for the amounts he had paid to the defendant pursuant to the previous court order.

This case is now before us on appeal by the defendant. She claims that the trial court erred in: (1) ruling that the act applies prospectively only to dissolution judgments entered after the act’s effective date; (2) concluding that the parties had contemplated the substantial change in financial circumstances; and (3) making financial awards that retroactively denied the defendant attorney’s fees during the pendency of the plaintiff’s motion for reconsideration, and prospectively diminished the defendant’s financial support by the increased amount of alimony and child support awarded to the defendant by its December 18, 1987 decision.

I

The defendant’s argument about the applicability of the amended § 46b-86 (a) encompasses three claims. She maintains that the new act should apply to all motions for modification filed after its effective date because: (1) even applied prospectively, the act encompasses her motion; (2) the act represents a clarification of the legislature’s original intent rather than a substantive change in § 46b-86 (a); and (3) any contrary construction would impair her constitutional rights to equal protection of the laws. We are unpersuaded by any of these claims.

A

The rules of statutory construction that govern the applicability of new legislation to preexisting transactions are well established. Our point of departure is General Statutes § 55-3, which states: “No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.” “The ‘obligations’ referred to in the statute are those of substantive law.” Nagle v. Wood, 178 Conn. 180, 186, 423 A.2d 875 (1979). Thus, we have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. Westport v. State, 204 Conn. 212, 219, 527 A.2d 1177 (1987); Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 174, 479 A.2d 1191 (1984); Enfield Federal Savings & Loan Assn. v. Bissell, 184 Conn. 569, 571, 440 A.2d 220 (1981). The legislature only rebuts this presumption when it “clearly and unequivocally” expresses its intent that the legislation shall apply retrospectively. State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986); Schieffelin & Co. v. Department of Liquor Control, supra, 174; Enfield Federal Savings & Loan Assn. v. Bissell, supra, 572.

The amended § 46b-86 (a) falls within the rubric of legislation that affects substantive rights because it increases statutory liability. Hunter v. Hunter, 177 Conn. 327, 332, 416 A.2d 1201 (1979); Little v. Ives, 158 Conn. 452, 457, 262 A.2d 174 (1969). The. new act increases the plaintiffs statutory exposure by subjecting him to the risk of modified financial orders even for previously contemplated salary increases, when prior law would have afforded him immunity from such liability. Thus, because the act is substantive in nature, we presume that the legislature intended it to have prospective applicability. Westport v. State, supra, 219; Schieffelin & Co. v. Department of Liquor Control, supra, 174. The defendant has directed us to no “clear and unequivocal” language in the act, and we have found none, that would support a contrary inference in favor of retrospective application. Accordingly, we hold that the act applies prospectively only. Cf. Schieffelin & Co. v. Department of Liquor Control, supra, 174 (use of the words “has had” denotes retrospective application); Enfield Federal Savings & Loan Assn. v. Bissell, supra, 572 (statute explicitly directs application to pending appeals).

Although at trial the defendant maintained that the new act made only procedural changes that could be applied retrospectively, she now concedes that the act can have only prospective application. The question that presently divides the parties is what prospective applicability means in this case. The defendant argues that it includes all motions for modification filed after the effective date of the act, while the plaintiff argues that it must be confined to dissolution decrees entered after that date. We agree with the plaintiff.

As a matter of common sense, the defendant’s argument cannot prevail. Accepting her interpretation of prospective applicability would leave pre-act dissolutions vulnerable to modifications that would previously have been disallowed. The ineluctable result would be to apply the act retrospectively. See Muha v. United Oil Co., 180 Conn. 720, 729, 433 A.2d 1009 (1980). “Strict construction to prevent retroactive operation has often been applied in order that the statute would not violate contract obligations or interfere with vested rights.” 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1986) § 41.04, p. 349. The parties in this case negotiated their dissolution agreement well aware, as the trial court found, of the plaintiff’s future earning capacity and of the law regarding modifications. Acceptance of the defendant’s proposed application of the act would disrupt settled expectations. We will not construe the act in such a manner absent a specific mandate from the legislature. State v. Lizotte, supra, 741; Hunter v. Hunter, supra, 331.

To the extent that the legislature addressed the time frame relevant to the applicability of the act, its choice of language supports the construction we have adopted. Far from rebutting § 55-3, the legislature made clear its intention that the time of the entry of a dissolution decree was to be the focal point of the act’s applicability. As a partial offset to the policy decision generally permitting broader modifiability'of financial orders, the act provides: “By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation, or decision of the court. ” (Emphasis added.) Public Acts 1987, No. 87-104. In effect, this portion of the act reverses the burden of proof with regard to contemplation. Whereas, until now, the party moving for modification has had to prove that the changed circumstances were uncontemplated at the time of dissolution; McCann v. McCann, 191 Conn. 447, 451, 464 A.2d 847 (1983); Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977); under the new act, the party resisting modification will have to prove, by pointing to a written agreement, stipulation or decision of the court, that “those items or circumstances . . . were contemplated and are not to be changed.” See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1987 Sess., p. 300. This provision of the act can only apply to dissolutions entered after October 1, 1987, because the parties to pre-act dissolutions would not have had access to the statutorily mandated means to avoid modifications. Thus, reading the act as a whole, as we must, we conclude that the indubitable prospective application of this provision equally dictates the prospective application of the other. See Nicotra Wieler Investment Manage ment, Inc. v. Grower, 207 Conn. 441, 451, 541 A.2d 1226 (1988); Gentry v. Norwalk, 196 Conn. 596, 606, 494 A.2d 1206 (1985); 2A J. Sutherland, supra.

B

The prospective application of new legislation is premised on the assumption that the legislature has intended to make a change in existing law. The defendant urges an end run around this presumption on the hypothesis that the legislature passed the new act not to make a change but “to correct inequity resulting from the judiciary’s interpretation” of § 46b-86 (a). She claims that the legislature responded to the Appellate Court’s decision in Harlan v. Harlan, 5 Conn. App. 355, 498 A.2d 129 (1985), and that, as clarifying legislation, the new act applies to all future motions for modification. We are not persuaded.

In principle, a statutory amendment that construes and clarifies a prior statute operates as the legislature’s declaration of the meaning of the original act. State v. Blasko, 202 Conn. 541, 558, 522 A.2d 753 (1987); Neyland v. Board of Education, 195 Conn. 174, 180, 487 A.2d 181 (1985). “ ‘[I]f the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act . . . . ’ ” State v. Blasko, supra, 558, quoting 1A J. Sutherland, supra, § 22.31, p. 276; see also Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 640, 513 A.2d 52 (1986). To determine whether an act should be characterized as clarifying legislation, we look to the legislative history to determine the legislative intent. State v. Blasko, supra, 558.

While the defendant claims that the act was a “swift response” to the law as announced in Harlan v. Harlan, supra, and thus a clarification of § 46b-86 (a), the legislative history indicates awareness that this court had long interpreted § 46b-86 (a) to include a contemplation requirement. Harlan is mentioned only once in the legislative history, and then by a nonmember of the General Assembly who referred to it as “[o]ne of the most recent cases” of the courts’ use of the contemplation doctrine. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1987 Sess., p. 298. More often the legislators referred to “our case law,” “other cases” and “some court decisions,” when describing the state of the law that they sought to affect. See 30 H.R. Proc., Pt. 8, 1987 Sess., pp. 2619, 2723 (Rep. Richard D. Tulisano) and 2620 (Rep. Richard 0. Belden).

As the defendant recognizes, in Grinold v. Grinold, 172 Conn. 192, 374 A.2d 172 (1976), we first interpreted § 46b-86 (a) as not affecting substantial changes contemplated at the time of dissolution. Since Grinold, this court and the Appellate Court have applied the doctrine of contemplation many times. See, e.g., Connolly v. Connolly, 191 Conn. 468, 473, 464 A.2d 837 (1983); McCann v. McCann, 191 Conn. 447, 451, 464 A.2d 825 (1983); Scott v. Scott, 190 Conn. 784, 790, 462 A.2d 1054 (1983); Cersosimo v. Cersosimo, 188 Conn. 385, 403, 449 A.2d 1026 (1982); Kelepecz v. Kelepecz, 187 Conn. 537, 538, 447 A.2d 8 (1982); Benson v. Benson, 187 Conn. 380, 382, 446 A.2d 796 (1982); McGuinness v. McGuinness, 185 Conn. 7, 9-10, 440 A.2d 804 (1981); Bilosz v. Bilosz, 184 Conn. 90, 93, 441 A.2d 59 (1981); Noce v. Noce, 181 Conn. 145, 147, 434 A.2d 345 (1980); Theonnes v. Theonnes, 181 Conn. 111, 113, 434 A.2d 343 (1980); Bunche v. Bunche, 180 Conn. 285, 290, 429 A.2d 874 (1980); Cummock v. Cummock, 180 Conn. 218, 220-21, 429 A.2d 474 (1980); McGowan v. McGowan, 179 Conn. 685, 687, 427 A.2d 852 (1980); Swayze v. Swayze, 176 Conn. 323, 337, 408 A.2d 1 (1978); Fricke v. Fricke, 174 Conn. 602, 602, 392 A.2d 473 (1978); Friedly v. Friedly, 174 Conn. 279, 280, 386 A.2d 236 (1978); Ribner v. Ribner, 6 Conn. App. 98, 101, 503 A.2d 612 (1986); Howat v. Howat, 1 Conn. App. 400, 403, 472 A.2d 799 (1984).

This history persuades us that the act was not “a classic reaction to a judicial interpretation that was deemed inappropriate.” State v. Magnano, 204 Conn. 259, 283, 528 A.2d 760 (1987). Rather than clarifying its earlier intention in enacting the original statutory language, the legislature decided, as a matter of policy, to change a rule ingrained in nearly thirteen years of case law. Such a change in the law must presumptively be applied prospectively.

C

Finally, the defendant claims that a construction of the act limiting its applicability to those whose dissolution decrees postdated October 1,1987, would deprive her of the equal protection of the laws in violation of the fourteenth amendment to the United States constitution and article first, § 20 of the Connecticut constitution. She maintains that, for the class of formerly married persons, it is constitutionally impermissible to enact different rules depending upon the dates when such marriages were dissolved. We disagree.

The equal protection clause mandates like treatment for all persons who are similarly situated. Barde v. Board of Trustees, 207 Conn. 59, 65, 539 A.2d 1000 (1988). Its predicate is a determination of who are the persons similarly situated. In our view, in this case the class of persons similarly situated consists of all persons receiving alimony or support whose marriages were dissolved before October 1, 1987. See United States v. Frady, 456 U.S. 152, 160-62, 102 S. Ct. 1584, 71 L. Ed. 2d 816, reh. denied, 456 U.S. 1001, 102 S. Ct. 2287, 73 L. Ed. 2d 1296 (1982); Dortch v. State, 142 Conn. 18, 29-30, 110 A.2d 471 (1954). The new act, as we have construed it, will enable the defendant to continue to receive the same treatment as every other member of her class and thus does not deprive her of the equal protection of the laws.

II

The defendant next challenges the validity of the trial court’s conclusion that § 46b-86 (a) (as amended to 1987) barred her eligibility for modified financial support from the plaintiff because the parties had contemplated the plaintiff’s salary increase at the time of the dissolution decree. The defendant makes two claims: that the trial court’s finding was unsubstantiated as a matter of fact, and that its conclusion was unwarranted as a matter of law. We disagree with both.

The defendant’s attack on the finding of fact focuses on the absence of language in the dissolution agreement indicating that the parties had contemplated a substantial increase in the plaintiff’s income. We have never required such a contemplation to be memorialized by a writing. The applicable test is simply that “[a] party seeking modification must show ‘a substantial change in the circumstances of either party, occurring subsequent to the entry of the original decree, and not contemplated by the parties at that time.’ ” (Emphasis added.) McCann v. McCann, 191 Conn. 447, 450-51, 464 A.2d 825 (1983), quoting Noce v. Noce, 181 Conn. 145, 147, 434 A.2d 345 (1980); Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977). The moving party, in this case the defendant, bears the burden of demonstrating that the parties did not contemplate the plaintiff’s changed financial situation and cannot simply argue that the trial court did not have sufficient evidence in the record. Furthermore, “ ‘[t]he unquestioned rule [in a modification action] is that great weight is due to the action of the trial court and every reasonable presumption will be made in favor of its correctness.’ Noce v. Noce, supra, 149; see Swayze v. Swayze, 176 Conn. 323, 337-38, 408 A.2d 1 (1978). As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case, such as demeanor and attitude of the parties at the hearing.” McGuinness v. McGuinness, supra, 13. The test is whether the court could reasonably conclude as it did. Hardisty v. Hardisty, 183 Conn. 253, 260, 439 A.2d 307 (1981); Koizim v. Koizim, 181 Conn. 492, 497, 435 A.2d 1030 (1980).

The record amply supports the trial court’s finding of fact. During the parties’ three and one-half year marriage, the plaintiff’s salary had more than doubled as a result of his successful completion of several parts of the examinations required to attain accreditation as an actuary. The defendant knew, at the time of the dissolution action, that the plaintiff planned to finish this series of examinations and would, after the tenth and final examination, become a corporate officer at a substantially higher salary. In light of these underlying facts, whose accuracy the defendant does not challenge, the trial court could reasonably have found that the parties had contemplated the plaintiff’s increase in income at the time of dissolution.

The defendant’s alternate argument that the trial court erred as a matter of law is equally unavailing. In effect, the defendant urges us to overrule the contemplation doctrine that we adopted in Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976); as a misinterpretation of legislative intent and of the criteria listed in a treatise upon which we relied. We decline to do so. Our long-standing interpretation of the governing statute was grounded in well established doctrines of res judicata, sanctity of contract and finality of litigation, doctrines recognized by many jurisdictions in similar contexts. Especially in cases such as this, in which the defendant moved to modify the judgment a mere ten months after the decree of dissolution, we find nothing inequitable in the presumption that the parties anticipated future changes in their respective financial circumstances.

Ill

The defendant’s final claim urges us to find error in two of the trial court’s financial orders. The defendant claims that the trial court erroneously: (1) denied her attorney’s fees by granting the plaintiff’s motion to stay a previously entered order pending resolution of the plaintiff’s motion for reconsideration of the court’s original ruling on the defendant’s motion for modification; and (2) reduced her financial award by the added amounts that she had received in accordance with the court’s original ruling on her motion for modification.

A

The trial court awarded the defendant an allowance of $2000 for attorney’s fees to enable her to defend an appeal that the plaintiff had taken from the court’s initial modification of her orders for support and alimony. Two months later, when the plaintiff moved for reconsideration of the court’s order, the plaintiff successfully-moved for a stay of this award. When the plaintiff prevailed on the motion for reconsideration, the plaintiff withdrew his appeal. The defendant thereafter filed the present appeal on her own behalf, and was granted an allowance of $2500 for this purpose. Thus, at each relevant juncture, the trial court granted the defendant attorney’s fees.

In domestic cases the trial court has the authority, pursuant to General Statutes § 46b-62, to consider the parties’ respective financial situations and to award counsel fees to ensure that a lack of funds does not deprive one party of his or her rights. Koizim v. Koizim, supra, 501; Ridolfi v. Ridolfi, 178 Conn. 377, 380, 423 A.2d 85 (1979). “ ‘ “Whether to allow counsel fees, and if so in what amount, calls for the exercise of judicial discretion.” ’ ” Holley v. Holley, 194 Conn. 25, 33-34, 478 A.2d 1000 (1984); El Idrissi v. El Idrissi, 173 Conn. 295, 301-302, 377 A.2d 330 (1977). Nothing in the record convinces us that the trial court abused its wide discretion in awarding attorney’s fees to the defendant in this case.

B

Finally the defendant argues that the trial court erred in the financial order it made following its decision to reconsider its original order modifying the defendant’s award of support and alimony. Upon reconsideration, the court ordered that the plaintiff receive a credit for the additional amount he had paid under the modified order. The defendant challenges the propriety of this credit. We agree.

In its original award of modified support and alimony, on December 18, 1987, the trial court increased the plaintiff’s financial obligation to the defendant from $125 per week for unallocated alimony and child support to weekly payments of $150 for child support and $100 for alimony. This award was made retroactive to November 20, 1987, the date of the defendant’s filing of a financial affidavit in support of her motion for modification. On March 31, 1988, having granted the plaintiff’s motion for reconsideration, and having denied the motion for modification, the court granted the plaintiff’s request for a credit for the amount of money he had paid to the defendant pursuant to the trial court’s prior decision. The court awarded the plaintiff a credit of $5 per week.

Awards of support and alimony fall within the trial court’s equitable powers and “ ‘ “[t]he power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of marriage.” ’ ” LaCroix v. LaCroix, 189 Conn. 685, 689, 457 A.2d 1076 (1983); Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982). The plaintiff has not challenged the trial court’s factual finding that an equitable redistribution of the financial resources of the parties would have been warranted, in accordance with the court’s December order, but for the application of the contemplation doctrine. We must therefore presume that the additional $125 then awarded to the defendant, far from being excessive, represented moneys that she needed to sustain the standard of living to which she and the child were entitled. Stoner v. Stoner, 163 Conn. 345, 354, 307 A.2d 146 (1972); H. Clark, Law of Domestic Relations (1968) § 14.5, p. 444.

When the trial court correctly concluded, after reconsideration in March, that it could not allow a financial modification in this case, the court became powerless to enforce its December award of alimony and support for the future. Its remedial order, however, does not return the defendant to the terms of the prior weekly order for alimony and child support, but diminishes further the amount of the payment she will receive from the plaintiff. Imposition of the credit order requires the defendant to live under financial circumstances even more stringent than those deemed to be fair and equitable at the time of the dissolution decree. In effect, the court has ordered a retroactive modification of alimony and support. We have previously construed § 46b-86 as not authorizing such a retroactive modification. Sanchione v. Sanchione, 173 Conn. 397, 406-407, 378 A.2d 522 (1977).

Given the substantial disparity in the financial resources between the parties in this case, we conclude that it is more appropriate for the plaintiff than for the defendant to bear whatever hardship ensues from the trial court’s mistaken ruling of December 18, 1987. Without a credit, the plaintiff, earning a salary of $56,000 per year, must merely pay the same weekly amount of $125 in unallocated alimony and child support that he initially agreed to pay at the time of the dissolution decree, when he was earning considerably less. With a credit, the defendant loses available financial resources as a result of advancing arguments which, though ultimately unpersuasive, are not so frivolous as to warrant an inference of lack of good faith on her part. Indeed, no claim of lack of good faith has been advanced by the plaintiff. On this record, it was not “a just and equitable resolution of the marital dispute”; Sands v. Sands, 188 Conn. 98, 105, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983); to order a reduction in the plaintiff’s weekly payment to $120. The trial court’s order of a $5 per week credit was therefore in error.

There is error in part, and the trial court’s judgment is directed to be modified to delete the award to the plaintiff of a credit for moneys paid to the defendant under the trial court’s prior decision.

In this opinion the other justices concurred.

       Public Acts 1987, No. 87-104 repealed General Statutes § 46b-86 (a) and replaced it with the following: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party. After the date of judgment, modification may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law.”
      The act became effective on October 1, 1987.

       The court found that the plaintiff then earned $1076.92 weekly ($831.13 net) and the defendant then earned $113 weekly ($88 net).

       General Statutes (Rev. to 1987) § 46b-86 (a) provides: “(Formerly Sec. 46-54.) MODIFICATION OF ALIMONY OE SUPPORT ORDERS AND JUDGMENTS, (a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law.”

       The defendant filed a cross appeal challenging the finding that the parties had contemplated the plaintiff’s changed financial circumstances. The Appellate Court granted the plaintiff’s motion to dismiss this cross appeal as untimely.

       During the trial court’s resolution of this motion, the parties agreed to a court ordered stay of the court’s allowance of attorney’s fees.

       In LaBow v. LaBow, 13 Conn. App. 330, 344-45 n.5, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988), the Appellate Court construed the act to be a substantial change in the law and to affect the substantive rights of the parties. Accordingly, it determined that the legislature presumably intended that the act should not apply to matters pending in appellate courts.

       The plaintiff withdrew his appeal.
      On April 20, 1988, the defendant moved for an allowance of attorney’s fees and costs to prosecute the appeal. The trial court granted her motion, ordering the plaintiff to pay her $2500.

       We, of course, still recognize “the continued vitality and utility of the principle that procedural statutes will be applied retroactively absent contrary legislative intent . . . . ” State v. Lizotte, 200 Conn. 734, 740, 517 A.2d 610 (1986); see also State v. Paradise, 189 Conn. 346, 351, 456 A.2d 305 (1983).

       The defendant offers no support, and we have found none, for her argument that the doctrine of retroactivity does not apply where the legislature overturns a judicial interpretation of a statute rather than a purely legislative act.

        Lupien v. Lupien, 192 Conn. 443, 472 A.2d 18 (1984), upon which the defendant relies, does not persuade us otherwise. In Lupien the marriage of the parties had been dissolved prior to the enactment in 1978 of General Statutes § 46b-86 (b), which allowed for the modification of periodic alimony “upon a showing that the party receiving the periodic alimony is living with another person under circumstances which . . . cause such a change of circumstances as to alter the financial needs of that party.” We applied the 1978 statute to a 1980 motion for modification. Because the parties in Lupien did not raise the question, we did not there consider the issue of the retrospective application of § 46-86 (b). Our decision in Lupien is therefore inapposite here. See State v. Magnano, 204 Conn. 259, 277, 528 A.2d 760 (1987).

       The equal protection clauses of the state and federal constitutions have like meaning and may therefore be considered together. Zapata v. Burns, 207 Conn. 496, 504-505, 542 A.2d 700 (1988); Daily v. New Britain Machine Co., 200 Conn. 562, 577, 512 A.2d 893 (1986).

       The moving party no longer bears such a burden under Public Acts 1987, No. 87-104.

       See, e.g., Hinchey v. Hinchey, 722 P.2d 949, 952 (Alaska 1986); In re Marriage of Carlson, 338 N.W.2d 136, 141 (Iowa 1983); Williams v. Williams, 444 A.2d 977, 980 (Me. 1982); Sholl v. Sholl, 216 Neb. 289, 290, 343 N.W.2d 742 (1984); Sylvia v. Sylvia, 146 Vt. 596, 597, 508 A.2d 708 (1986); Clifford v. Clifford, 133 Vt. 341, 344, 340 A.2d 60 (1975); Wagner v. Wagner, 95 Wash. 2d 94, 98, 621 P.2d 1279 (1980); Goff v. Goff, 356 S.E.2d 496, 500-501 (W. Va. 1987); Moore v. Moore, 89 Wis. 2d 665, 669, 278 N.W.2d 881 (1979).

       The plaintiff represents that the defendant consented to this stay, which the defendant has never disputed.

       The trial court also denied the plaintiff’s motion for an allowance of attorney’s fees to defend the defendant’s appeal.


author: Per Curiam.

text:
    State of Connecticut v. James Leonard
    (13435)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued March 1
    decision released March 21, 1989

      Brian M. O’Connell, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Robert C. Brunetti, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant, James Leonard, entered a conditional plea of nolo contendere to the charge of possession of narcotics (cocaine) with intent to sell, in violation of General Statutes § 21a-277 (a). The Appellate Court found no error in the trial court’s denial of the defendant’s motion to suppress evidence. State v. Leonard, 14 Conn. App. 134, 539 A.2d 1030 (1988). We then granted the defendant’s petition for certification, limited to the following issue: “Did the Appellate Court err in sustaining the conclusion of the trial court at the hearing on the motion to suppress that there was sufficient evidence of probable cause under our federal and state constitutions to justify the police in making a warrantless search of the vehicle in which the defendant was a passenger and in arresting him as a result of that search?” State v. Leonard, 208 Conn. 807, 545 A.2d 1104 (1988).

After examining the record on appeal, and after considering the briefs and arguments of the parties, we conclude that the judgment of the Appellate Court must be affirmed. The issue on which we granted certification was properly resolved in the thoughtful and comprehensive opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion therein contained.

Affirmed.