author: Hull, J.

text:
    Alfred H. Wright, Jr., et al. v. Woodridge Lake Sewer District et al.
    (14004)
    Peters, C. J., Callahan, Glass, Hull and Borden, Js.
    Argued January 15
    decision released March 26, 1991

      Wesley W. Horton, with whom were Jeffrey A. Hoberman and, on the brief, Thomas C. White, for the appellants-appellees (defendants).

      Michael D. Rybak, for the appellees-appellants (plaintiffs).
   Hull, J.

The sole issue in this appeal is whether the trial court mistakenly declared a sewer ordinance invalid in the absence of a sufficient factual record. We conclude that the trial court should not have come to this conclusion without hearing the factual evidence offered by the defendants in support of the validity of the ordinance. We therefore reverse the judgment declaring the sewer ordinance null and void and remand the case for a new trial.

The factual and procedural matrix of the case, as found by the trial court, is not in dispute. The plaintiffs are owners of approximately 8.26 acres of land located on the westerly side of Beach Street in the town of Goshen. This property is located within the boundaries of the named defendant, the Woodridge Lake Sewer District (sewer district), which was established July 7, 1970, in order to provide sanitary sewer service to the Woodridge Lake planned unit development and several other properties, including that of the plaintiffs, located within the boundaries of the sewer district. On July 26,1971, the defendant Woodridge Lake Sewer District Sewer Authority (sewer authority) was created, which thereafter adopted the Woodridge Lake Sewer District Sewer Ordinance (ordinance) for the purpose of “regulating the use of public sewers and drains, the installation of and connection of building sewers and the discharge of waters and wastes into the public sewer system: and providing penalties for violations thereof.” The ordinance originally specified that no person “shall uncover, make any connections with or opening into, use, alter, or disturb any public sewer or appurtenance thereof without first obtaining a written permit from the Authority.” On November 18, 1981, the ordinance was amended to provide that “[notwithstanding any other provisions of this Ordinance, [connection] permits hereunder shall be issued only under circumstances such that there shall be no more than (1) dwelling unit equivalent per acre or per smaller lot of record as may exist as of the date of this provision of this Ordinance.” The amendment defines “dwelling unit equivalent” as “any use reasonably expected, consistent with good engineering practice, to generate less than 200 gallons of sewage per day.”

After the effective date of the amended ordinance, the plaintiffs applied to the sewer authority for a permit to connect their property to the sewer district’s sewerage system in order to service forty-one proposed condominium units to be constructed on their property. Following a meeting, the sewer authority denied the plaintiffs’ application for failure to comply with the ordinance requirement that there be no more than one dwelling unit equivalent per acre lot in order to obtain a sewer connection permit.

The plaintiffs brought this action in the Superior Court for a judgment declaring the ordinance invalid, claiming that the ordinance was: (1) unconstitutional on its face and as applied to the plaintiffs; (2) an unlawful, de facto exercise of planning and zoning authority; and (3) an illegal, arbitrary and exclusionary land use regulation. The plaintiffs also sought injunctive relief in conjunction with their claim for a declaration that the sewer authority had abused its administrative discretion by denying the plaintiffs’ application.

At trial, the court ruled that it would only consider evidence concerning the status of the plaintiffs’ ownership of the property involved and the question of their aggrievement. The defendants objected to this ruling, asserting that they had expert witnesses available to testify as to the claims of fact set forth in their preliminary memorandum of law, specifically, the design and capacity of the sewer district’s sewer system and the underlying purpose of the sewer ordinance. Nevertheless, the court declined to hear the evidence, reasoning that the defendants’ justification for enacting the sewer ordinance was not an issue in the case. Thereafter, relying on the principle that the authority to zone is vested exclusively in the zoning commission, the trial court ruled that “[t]he Ordinance as amended, constitutes unlawful de facto zoning by imposing a limit on sewer connection permits to not more than one (1) dwelling unit equivalent per acre, or smaller lot of record; by limiting the density on [the] plaintiffs’ property to eight (8) dwelling units; and by imposing such restrictions on lot size and density in the absence of district zoning authority and after the adoption of zoning by the Town of Goshen.” The court then declared the sewer ordinance null and void but declined to rule on the plaintiffs’ request for injunctive relief. The defendants appealed to the Appellate Court and the plaintiffs filed a cross appeal. We subsequently transferred the appeals to ourselves pursuant to Practice Book § 4023.

The defendants claim that the trial court erred by declaring the sewer ordinance invalid without hearing the defendants’ proffered evidence. The plaintiffs claim that it was not necessary to hear the proposed evidence in order to conclude that the ordinance constituted unlawful de facto zoning. We agree with the defendants.

“ ‘ “It is settled law that as a creation of the state, a municipality has no inherent powers of its own. City Council v. Hall, 180 Conn. 243, 248, 429 A.2d 481 (1980); Pepin v. Danbury, 171 Conn. 74, 83, 368 A.2d 88 (1976); New Haven Water Co. v. New Haven, 152 Conn. 563, 566, 210 A.2d 449 (1965); State ex rel. Coe v. Fyler, 48 Conn. 145,158 (1880).” New Haven Commission on Equal Opportunities v. Yale University, 183 Conn. 495, 499, 439 A.2d 404 (1981). A municipality has only those powers that have been expressly granted to it by the state or that are necessary for it to discharge its duties and to carry out its objects and purposes. City Council v. Hall, supra, 248.’ ” Norwich v. Housing Authority, 216 Conn. 112, 123, 579 A.2d 50 (1990). This principle applies with equal force to quasi-municipal corporations. Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294, 533 A.2d 208 (1987); Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 547, 427 A.2d 822 (1980).

A sewer district established under chapter 105 of the General Statutes is a quasi-municipal corporation; see Stroiney v. Crescent Lake Tax District, supra; Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra; Larkin v. Bontatibus, 145 Conn. 570, 576, 145 A.2d 133 (1958); 1 E. McQuillin, Municipal Corporations (3d Ed.) § 2.29; which, through its sewer authority, has the power to acquire, construct, maintain, supervise, manage and operate a sewer system and “perform any act pertinent to the collection, transportation and disposal of sewage.” General Statutes § 7-245; see General Statutes §§ 7-246 (c), 7-247. The “power to ‘construct, establish and maintain drains and sewers’ includes power to make reasonable regulations for tapping and connecting with the sewers.” 11 E. McQuillin, supra, § 31.30, p. 262. Furthermore, “a municipality has ‘wide discretion in connection with the decision to supply sewerage.’ 11E. McQuillin, [supra,] § 31.17.” Archambault v. Water Pollution Control Authority, 10 Conn. App. 440, 444, 523 A.2d 931 (1987).

Municipal regulations are upheld as a legitimate exercise of the police power provided that they are rationally related to the public health, safety and welfare and operate in a manner that is not arbitrary, oppressive or fraudulent. See Lizotte v. Conservation Commission, 216 Conn. 320, 336, 579 A.2d 1044 (1990); Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 20, 523 A.2d 467 (1987); Hartland v. Jensen’s, Inc., 146 Conn. 697, 703, 155 A.2d 754 (1959); Archambault v. Water Pollution Control Authority, supra. Whether municipal regulations meet the test of legitimacy must be determined in the light of the circumstances shown to exist in a particular case. See Helbig v. Zoning Commission, 185 Conn. 294, 304, 440 A.2d 940 (1981); Bartlett v. Zoning Commission, 161 Conn. 24, 31, 282 A.2d 907 (1971).

In response to the plaintiffs’ claim that the sewer ordinance constitutes unlawful de facto zoning, the defendants claim that the ordinance is a lawful exercise of their power to operate and maintain a sewerage system. At trial, in support of this claim, the defendants sought to present expert testimony that: (1) the purpose of the amended sewer ordinance was to ensure fair availability of the sewer system to all properties; and (2) the restrictions in the amended sewer ordinance appropriately reflected the design, functioning, capacity and operation of the Woodridge Lake Sewer District Treatment Plant and sewer system. This evidence is relevant to the issue of whether the sewer ordinance, as amended, is rationally related to the operation and maintenance of a sewerage system and, thus, a legitimate exercise of the police power. We conclude, therefore, that the trial court should not have adjudicated the validity of the sewer ordinance without first considering the evidence offered by the defendants.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other justices concurred.

       The plaintiffs are Alfred H. Wright, Jr., Patricia D. Wright, A. Edward Wright, Timothy Wright, Christopher Wright, Raynald J. Dupill and Rita M. Dupill.

       General Statutes (Rev. to 1966) § 7-325 provides in pertinent part: “Upon the petition of twenty or more voters, as defined by section 7-6, of any town . . . specifying the limits of a proposed district for any or all of the purposes set forth in section 7-326 . . . the selectmen of such town shall call a meeting of the voters residing within such specified limits to act upon such petition .... Upon approval of such petition by such meeting, the voters may name the district . . . .”
      General Statutes § 7-326 provides in pertinent part: “At such meeting, the voters may establish a district for any or all of the following purposes ... to construct and maintain . . . drains and sewers . . . .”

       General Statutes (Rev. to 1966) § 7-246 provides in pertinent part: “Any municipality may, by ordinance . . . create a new board or commission to be designated, as the sewer authority for such municipality.”

       It is undisputed that the sewer district did not adopt zoning authority pursuant to General Statutes § 7-326, although it was within its power at the time that the sewer ordinance was amended to do so.

       The plaintiffs claim, as alternate grounds for affirming the judgment, that the trial court erred in failing to conclude that the sewer ordinance: (1) on its face and as applied, denied the plaintiffs the use of their property in violation of the due process clauses of the federal and state constitutions; and (2) constituted illegal, arbitrary and exclusionary land use regulation. In their cross appeal, the plaintiffs claim that the trial court should have granted their request for injunctive relief.

       General Statutes § 7-245 provides that “ ‘municipality’ means any . . . sewer district . . . [and] ‘operate a sewerage system’ means own, use, equip, reequip, repair, maintain, supervise, manage, operate and perform any act pertinent to the collection, transportation and disposal of sewage )>

       General Statutes § 7-246 (c) provides in pertinent part: “Any municipal sewer authority in existence prior to October 1,1978, shall be deemed to be the water pollution control authority of such municipality unless the legislative body of the municipality, by ordinance, determines otherwise, and such water pollution control authority shall be deemed the successor to such sewer authority for all of the purposes of this chapter.” The Woodridge Lake Sewer District Sewer Authority was established on July 17, 1970.
      General Statutes § 7-247 provides in pertinent part: “Any municipality by its water pollution control authority may acquire, construct and operate a sewerage system . . . .”

       The plaintiffs also sought to present evidence regarding the design, function, capacity and operation of the sewer plant and system. In addition, they were prepared to offer expert testimony that the sewer ordinance restricted the use of their property and that the denial of their application for a sewer connection permit was arbitrary and unreasonable.

       Because the evidence offered by the parties at trial would also be relevant in adjudicating the issues presented by the plaintiffs’ alternate grounds for affirmance; see footnote 5, supra; we do not reach these issues. We also need not consider the plaintiffs’ cross appeal challenging the trial court’s denial of their request for injunctive relief, since it is premature in light of this opinion.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Joseph G. Kane
    (13836)
    Peters, C. J., Callahan, Covello, Borden and Santaniello, Js.
    Argued December 12, 1990
    decision released March 26, 1991

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, was Mary M. Galvin, state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Joseph Kane, was charged in a substitute information with the crimes of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), larceny in the first degree in violation of General Statutes § 53a-122 (a) (2), and conspiracy to commit larceny in violation of General Statutes §§ 53a-122 (a) (2) and 53a-48 (a). A jury convicted the defendant of all counts. The trial court subsequently sentenced him to a term of imprisonment of forty-seven years for the crime of felony murder and to concurrent terms of imprisonment of twenty years on each of the remaining counts of the information.

The charges contained in the substitute information arose out of the robbery of Valentine’s Diamond Center in Milford by the defendant and Carlton Jolley on March 31, 1988. During the course of the robbery, a proprietor of the Diamond Center, Michael Valentine, was shot and killed, and jewelry with a wholesale value of approximately $39,000 was stolen. The defendant did not seriously dispute the fact that he had been at the scene of the robbery and had assisted in removing items from the store. He argued, however, that Jolley had shot the victim and that he had not been aware that Jolley planned a robbery.

At trial, the defendant presented the affirmative defense of insanity, claiming that at the time the crime was committed he suffered from a mental disease or defect. See General Statutes § 53a-13. He maintained that, due to a passive personality disorder and adolescent adjustment reaction, he had been in a disassociated state during the robbery and had assisted in the robbery while in that state. He contends, therefore, that he should have been found not guilty by reason of insanity. Two witnesses testified in the defendant’s defense, his mother and James Merikangas, a neurologist and psychiatrist. The defendant did not testify. In his appeal the defendant has launched a wide-ranging attack on the conduct of his trial and the procedure by which he was brought to trial.

The defendant’s principal claim is that General Statutes § 54-46a is unconstitutional and deprived him of due process of law because the statute precluded a motion to suppress at his probable cause hearing and consequently deprived him of the opportunity to suppress his allegedly involuntary statements to the police at that stage of the proceedings. He contends, therefore, that he is entitled to a new probable cause hearing at which his motion to suppress must be heard, and a new trial. We disagree.

“It is well settled that a party who challenges a statute on constitutional grounds has no easy burden, for every intendment will be made in favor of constitutionality, and invalidity must be established beyond a reasonable doubt. Lublin v. Brown, 168 Conn. 212, 219, 362 A.2d 769 [1975]; Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 [1972], appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 [1973]; Adams v. Rubinow, 157 Conn. 150, 152-53, 251 A.2d 49 [1968]; Patterson v. Dempsey, 152 Conn. 431, 444, 207 A.2d 739 [1965]; Norwalk Street Ry. Co.’s Appeal, 69 Conn. 576, 594, 37 A. 1080 [1897].” State v. Darden, 171 Conn. 677, 678, 372 A.2d 99 (1976); see also University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 390, 512 A.2d 152 (1986); State v. Dupree, 196 Conn. 655, 663, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985). The defendant has cited no authority that compels us to conclude that he has sustained the heavy burden he has shouldered of demonstrating the unconstitutionality of the statutory provision in question.

The legislature enacted § 54-46a in the 1983 legislative session. See Public Acts 1983, No. 83-210, §§ 1, 5. The purpose of § 54-46a was to institute the procedures necessary to implement article first, § 8 of the Connecticut constitution, as amended by article seventeen of the amendments to the Connecticut constitution, which had been certified by the secretary of the state as adopted by the voters during the prior year. See State v. Sanahria, 192 Conn. 671, 677-78, 474 A.2d 760 (1984). That amendment eliminated the grand jury indictment as the required means for holding a person for a crime punishable by death or life imprisonment and replaced it with a probable cause hearing. At the time of its adoption, however, the amendment did not embody the procedures necessary to facilitate its implementation but rather left the enactment of such procedures to the legislature. State v. Rollinson, 203 Conn. 641, 651, 526 A.2d 1283 (1987). The legislature responded by enacting § 54-46a. State v. Sanabria, supra, 693. Included in § 54-46a (b) is the provision that the defendant claims is unconstitutional and deprived him of due process of law, namely, that: “No motion to suppress or for discovery shall be allowed in connection with [a probable cause] hearing.”

There is no federal constitutional requirement applicable to the states mandating a grand jury proceeding or probable cause hearing in order to place a person on trial in a state criminal proceeding. Gosa v. Mayden, 413 U.S. 665, 668 n.1, 93 S. Ct. 2926, 37 L. Ed. 2d 873 (1973); Hurtado v. California, 110 U.S. 516, 538, 4 S. Ct. 111, 28 L. Ed. 232 (1884); Collins v. Swenson, 443 F.2d 329, 331 (8th Cir. 1971); State v. Gyuro, 156 Conn. 391, 394, 242 A.2d 734, cert. denied, 393 U.S. 937, 89 S. Ct. 301, 21 L. Ed. 2d 274 (1968); State v. Orsini, 155 Conn. 367, 375-76, 232 A.2d 907 (1967); Hervey v. People, 178 Colo. 38, 44, 495 P.2d 204 (1972); State v. Jefferson, 79 Wash. 2d 345, 348, 485 P.2d 77 (1971); 1 F. Wharton, Criminal Procedure (13th Ed. Torcia) § 179. Connecticut was free therefore to create its own method and procedures to establish probable cause as a prerequisite to a trial for crimes punishable by death or life imprisonment. The constitutional amendment established the method, a probable cause hearing, and the legislature, pursuant to the constitutional mandate imposed upon it by the amendment, established the procedures for the conduct of the hearing through the enactment of § 54-46a. Once in place, those procedures became constituent parts of the substantive rights created by the constitutional amendment. State v. Rollinson, supra, 651; State v. Sanabria, supra, 690. Those substantive rights explicitly exclude a right to a hearing on a motion to suppress at the probable cause stage of a criminal proceeding in which the punishment may be death or life imprisonment. See General Statutes § 54-46a (b). The defendant, having been afforded a probable cause hearing under the constitution and § 54-46a, which provide his only entitlement to such a hearing, can hardly be heard to complain of a lack of due process because the trial court refused to extend him a right to which he was not entitled under either.

Moreover, “a hearing in probable cause is necessarily more limited in scope than a full trial on the merits.” State v. Rollinson, supra, 649. “A preliminary hearing is not designed to be a dress rehearsal for the trial.” Wilson v. State, 655 P.2d 1246, 1251 (Wyo. 1982). “A substantial majority of the states, including many which require a general adherence to the rules of evidence, do not recognize exclusionary rule objections at the preliminary hearing.” 2 W. LaFave & J. Israel, Criminal Procedure (1984) § 14.4, p. 266. Also, under the federal rules of criminal procedure, motions to suppress must be made to the trial court. See Fed. R. Crim. P. 5.1; 21 Am. Jur. 2d, Criminal Law § 428. Therefore, as long as the defendant was afforded the opportunity to challenge the admissibility of his statements at trial, the adjudicatory phase of the proceeding against him, his right to due process was preserved. See Costello v. United States, 350 U.S. 359, 364, 76 S. Ct. 406, 100 L. Ed. 397, reh. denied, 351 U.S. 904, 76 S. Ct. 692, 100 L. Ed. 1440 (1956); In re Ralph M., 211 Conn. 289, 313, 559 A.2d 179 (1989); Wilson v. State, supra. The Supreme Court of Hawaii, in commenting on a rule of criminal procedure containing a provision analogous to the provision of § 54-46a in question, stated that “a damaging confession, which may later be suppressed at the trial level on the ground that it was involuntary and illegally obtained by the police, may be admitted at a preliminary hearing.” Gannett Pacific Corporation v. Richardson, 59 Haw. 224, 232, 580 P.2d 49 (1978). We agree.

The defendant thereafter claims that even if he was not entitled to a motion to suppress at his probable cause hearing, the statements he gave to the police should have been excluded from evidence at his trial because they were involuntary. The trial court determined that the defendant’s statements were voluntary and admitted them into evidence.

The use of an involuntary statement of a defendant in a criminal trial violates a defendant’s right to due process of law. State v. Boscarino, 204 Conn. 714, 740, 529 A.2d 1260 (1987); State v. Smith, 200 Conn. 465, 475, 512 A.2d 189 (1986). As a prerequisite to admissibility the state is required to prove, by a preponderance of the evidence, that under all the circumstances admissions by an accused were voluntarily made. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Chung, 202 Conn. 39, 53, 519 A.2d 1175 (1987); State v. Stankowski, 184 Conn. 121, 131, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); State v. Vollhardt, 157 Conn. 25, 34, 244 A.2d 601 (1968). “ ‘The issue of whether [admissions are] voluntary and admissible is, in the first instance, one of fact for determination by the trial court in the exercise of its legal discretion.’ State v. Derrico, 181 Conn. 151, 162, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); see Jackson v. Denno, 378 U.S. 368, 395, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). Our usual deference to the trial court’s finding on questions of this nature is qualified by the necessity for an independent examination of the entire record to determine whether the trial court’s finding of voluntariness is supported by substantial evidence. State v. Toste, 198 Conn. 573, 576, 504 A.2d 1036 (1986); State v. DeForge, 194 Conn. 392, 398, 480 A.2d 547 (1984).” State v. DeAngelis, 200 Conn. 224, 232, 511 A.2d 310 (1986); State v. Chung, supra, 54.

We have made that independent examination and conclude that there is nothing in the record to support the defendant’s contention that his statements were not freely given. There is no evidence that, under all the circumstances, including the defendant’s age and intellect, the police conduct in relation to him “was such as to overbear [his] will to resist and bring about [statements] not freely self-determined . . . .” Rogers v. Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961); State v. Boscarino, supra, 740; State v. Smith, supra, 477; State v. Shifflett, 199 Conn. 718, 727, 508 A.2d 748 (1986). There is, on the other hand, substantial evidence that the police observed the defendant’s rights scrupulously and treated him fairly. The trial court did not act improperly in admitting the defendant’s statements into evidence.

All of the defendant’s remaining claims complain either of discretionary rulings by the trial court or seek review by this court of trial court rulings that were not properly preserved for appellate review. We have examined the defendant’s claims pertaining to the trial court’s discretionary rulings and have concluded that the court did not abuse its discretion in ruling as it did on those questions requiring the exercise of its discretion. We have also scrutinized the defendant’s claims that were not properly preserved for appellate review and to which the defendant ascribes constitutional implications. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Our examination of those claims in juxtaposition to the entire record leads to the conclusion that, even if conceded, any alleged constitutional imperfections in the defendant’s trial did not, singly or collectively, clearly deprive him of a fair trial. See State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989).

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54e. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”
      “[General Statutes] Sec. 53a-134. robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”
      “[General Statutes] Sec. 53a-122. larceny in the first degree: class b felony, (a) A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds ten thousand dollars . . . .”
      “[General Statutes] Sec. 53a-48. conspiracy, renunciation, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       Carlton Jolley was not tried with the defendant.

       “[General Statutes] Sec. 53a-13. lack of capacity due to mental disease or defect as affirmative defense, (a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.
      “(b) It shall not be a defense under this section if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance, or any combination thereof, unless such drug was prescribed for the defendant by a licensed practitioner, as defined in section 20-184a, and was used in accordance with the directions of such prescription.
      “(c) As used in this section, the terms mental disease or defect do not include (1) an abnormality manifested only by repeated criminal or otherwise antisocial conduct or (2) pathological or compulsive gambling.”

       The defendant on appeal raises the following issues: “1. Whether [General Statutes] § 54-46a (b) is unconstitutional to the extent that it bars motions to suppress statements on the grounds of involuntariness at a hearing in probable cause?
      “2. Whether the trial court committed reversible error when it precluded defense counsel from cross-examining the officers at the probable cause hearing concerning the circumstances under which the defendant’s statements were obtained, on the ground that such examination went to a motion to suppress statements, where counsel offered the questions as relevant to the credibility of the statements, and the weight the court should give them?
      “3. Whether the trial court erred in precluding the defense from rehabilitating the defense psychiatrist regarding his reliance on information from newspaper articles, where that reliance was attacked on cross-examination, and erred in precluding the defense from cross-examining the prosecution’s psychiatrist as to bias and facts going to credibility of his opinion?
      “4. Whether the trial court erred in concluding the defendant’s custodial statements were voluntary?
      “5. Whether the trial court erred in admitting the defendant’s statements as admissions, rather than rebuttal or impeachment evidence, where the prosecution had deliberately chosen not to offer the statements in [its] casein-chief?
      “6. Whether the trial court erred in failing to enforce the mandatory provisions of Practice Book § 760 that a defendant’s statements during a court-ordered psychiatric examination are not admissible on the issue of guilt, and erred in instructing the jury that the defendant’s statements to the prosecution psychiatrist could be used as evidence of guilt?
      “7. Whether the defendant was deprived of a fair trial by the prosecutor’s pervasive misconduct during trial and in closing argument?

        “8. Whether the trial court’s instruction that in order to rely on any inference, the jury must find both the basic fact and the inferred fact proven beyond a reasonable doubt, misled the jury as to the burden of proof on [the] inference the defendant sought to rely upon in support of his affirmative defense of mental disease or defect?
      “9a. Whether the trial court’s instructions on the defense of mental disease or defect were inadequate to guide the jury to a proper verdict because the court failed to define the terms ‘mental disease or defect,’ ‘proximate cause,’ and ‘wrongfulness’?
      “9b. Whether the trial court’s instructions on the defense of mental disease or defect were inadequate to guide the jury to a proper verdict because the court failed to explain the scope of [General Statutes] § 53a-13 (b) and its application to the present case?”

       “[General Statutes] Sec. 54-46a. probable cause hearing for persons CHARGED WITH CRIMES PUNISHABLE BY DEATH OR LIFE IMPRISONMENT. (a) No person charged by the state who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.
      “(b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in superior court. The court shall be confined to the rules of evidence, except that written reports of expert witnesses shall be admissible in evidence and matters involving chain of custody shall be exempt from such rules. No motion to suppress or for discovery shall be allowed in connection with such hearing. The accused person shall have the right to counsel and may attend and, either individually or by counsel, participate in such hearing, present argument to the court, cross-examine witnesses against him and obtain a transcript of the proceedings at his own expense. At the close of the prosecution’s case, if the court finds that, based on the evidence presented by the prosecution, probable cause exists, the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The court shall not allow the accused person to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause.
      “(c) If, from the evidence presented pursuant to subsection (b) of this section, it appears to the court that there is probable cause to believe that the accused person has committed the offense charged, the court shall so find and approve the continuance of the accused person’s prosecution for that offense. A determination by the court that there is not probable cause to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense.”

       The defendant’s reliance on State v. Mitchell, 200 Conn. 323, 337-38, 512 A.2d 140 (1986), is unpersuasive. Mitchell addresses the possible constitutional problem with the discovery provision of General Statutes § 54-46a (b) if that provision could be construed to interfere with the state’s continuing constitutional duty to disclose exculpatory information. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). There is no constitutional duty that requires a court to entertain motions to suppress at a probable cause hearing.

       Article seventeen of the amendments to the constitution of Connecticut provides: “Section 8 of the article first of the constitution is amended to read as follows: In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.” (Emphasis added.)


author: Peters, C. J.

text:
    Greenberg, Rhein and Margolis, Inc. v. Norris-Faye Horton Enterprises, Inc., et al.
    (14159)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued February 13
    decision released March 26, 1991

      John A. Keyes, with whom, on the brief, was Martin M. Looney, for the appellant (plaintiff).

      William C. Eustace, for the appellee (individual co-defendant).
   Peters, C. J.

The only issue on this appeal is whether the trial court abused its discretion in denying an application for a prejudgment remedy. The plaintiff, Green-berg, Rhein and Margolis, Inc., brought an action against the corporate defendant, Norris-Faye Horton Enterprises, Inc., and the individual defendant, Faye T. Horton (Horton), to recover the balance due on insurance premiums paid by the plaintiff. In conjunction with the filing of this complaint, the plaintiff sought to attach real property personally owned by Horton. After a hearing held pursuant to General Statutes § 52-278d, the trial court denied the plaintiffs application on the ground that the plaintiff had failed to show probable cause for its issuance. The plaintiff appealed to the Appellate Court in accordance with the provisions of General Statutes § 52-278l (a) (1). We transferred the appeal to this court pursuant to Practice Book § 4023 and now affirm.

The evidence presented by the plaintiff at the probable cause hearing consisted of the testimony of the plaintiffs vice president, David Margolis, and the contents of two documents that were admitted by stipulation. Margolis testified that the plaintiff was seeking reimbursement from the defendants for $3968 in insurance premiums that the plaintiff had become obligated to pay the Union Trust Company because of an indemnity agreement contained on the back of an “Insurance Premium Financing Note and Security Agreement” (insurance premium note or note).

The insurance premium note memorialized the obligation of the “maker-debtor,” described at the top of the note as the corporate defendant, to pay $6000 in designated installments to its payee, the Union Trust Company. The note stipulated that its proceeds were to be used to pay the balance of insurance premiums owed by “the debtor” to the Aetna Casualty and Surety Company under insurance policies designated by policy number. At the bottom of the note, in the place designated in the form for the signature of “Maker-Debtor(s),” appeared the signature of “Faye T. Horton.” Horton’s signature was not accompanied by any express indication that she was signing as representative of the corporate defendant.

The back of the insurance premium note contained a printed “warranty” to be given by an insurance agent or broker; this warranty was signed by Margolis on behalf of the plaintiff. The warranty identified “the debtor” as the insured designated in the insurance policy on the front of the note and represented that whoever had signed on behalf of a corporate entity had authority to do so. The warranty also contained an indemnity clause in which the warrantor promised to hold the Union Trust Company harmless from any loss arising out of the financing arrangement.

On the strength of the plaintiff’s allegation that its rights against the defendants arose out of the indemnity agreement on the back of the insurance premium note, the plaintiff claimed that it had an enforceable claim against Horton personally because she had signed the insurance premium note on its front. The plaintiffs complaint, however, contained no allegation that the plaintiff was the holder, transferee or assignee of the insurance premium note. Margolis, on cross-examination, was unable to clarify on what theory the plaintiff, as a stranger to the note, was entitled to invoke the liability that a maker of the note might have to its payee, the Union Trust Company. Furthermore, Margolis conceded, on cross-examination, that the insured “debtor” on whose behalf the premiums had been paid was the corporate defendant, not Horton. Finally, the plaintiffs counsel, in his argument before the trial court, withdrew any claim that Horton had signed as guarantor, contending instead that she was liable merely because she had signed as the debtor.

On this state of the record, the trial court concluded that there had been “no showing of probable cause as to the defendant Faye Horton” and denied the plaintiffs application for a prejudgment remedy as to her real property. The plaintiff maintains that this ruling should be reversed because Horton was personally obligated on the insurance premium note: (1) as an ambiguous signer of an instrument, in accordance with the provisions of General Statutes § 42a-3-403; or (2) as an accommodation maker of an instrument, in accordance with the provisions of General Statutes § 42a-3-415.

At the outset, we note the limited role that our case law assigns to appellate review of a trial court’s broad discretion to deny or to grant a prejudgment remedy. It is the trial court that must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of showing probable cause to sustain the validity of its claim. We decide only whether the determination of the trial court constituted clear error. New England Land Co. v. DeMarkey, 213 Conn. 612, 620-21, 569 A.2d 1098 (1990); Dow & Condon, Inc. v. Anderson, 203 Conn. 475, 479-80, 525 A.2d 935 (1987); Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985); Three S. Development Co. v. Santore, 193 Conn. 174, 176, 474 A.2d 795 (1984); William M. Raveis & Associates, Inc. v. Kimball, 186 Conn. 329, 333, 441 A.2d 200 (1982); Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977). Applying this standard of review to the record in this case, we conclude that the plaintiff cannot prevail.

The plaintiffs principal contention is that Horton is personally liable because she failed to identify her signature on the insurance premium note as that of a representative of the corporate defendant. Her personal liability arises, according to the plaintiff, because she signed her name without specifying that she was signing as agent for, or officer of, the corporate defendant. The plaintiff maintains that, by virtue of the provisions of § 42a-3-403 (2), the ambiguity of Horton’s signature imposed upon her the obligation of establishing that she was not personally liable, and that she failed to meet this burden at the trial court hearing. Although § 42a-3-403 (2) was not specifically brought to the attention of the trial court, we will presume, for present purposes, that this issue was adequately preserved to warrant appellate review.

An understanding of the import of the provisions of § 42a-3-403 (2) requires an examination of a number of sections in General Statutes §§ 42a-3-101 through 42a-3-805, otherwise known as article 3 of the Uniform Commercial Code. The plaintiff relies on that part of § 42a-3-403 (2) which provides: “An authorized representative who signs his own name to an instrument . . . (b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity . . . .” The plaintiff has not, however, alleged or demonstrated how, as a stranger to the instrument, it is a contemplated beneficiary of this section. It is of course true that, to the extent that Horton was the maker of an instrument, she became obligated, under General Statutes § 42a-3-413 (1), to “pay the instrument according to its tenor.” As a general matter, however, the obligation to pay the instrument contemplates a duty to pay the holder of an instrument; discharge of liability under General Statutes § 42a-3-603 (1) depends upon “payment or satisfaction to the holder.” See J. White & R. Summers, Uniform Commercial Code (3d Ed. 1988) § 13-21, p. 680. In other words, Horton arguably assumed a personal obligation to pay the amount due under the insurance premium note to its payee, the Union Trust Company, or to a subsequent holder to whom the Union Trust Company negotiated the note, but not to the plaintiff. Such legitimate doubts about the plaintiff’s standing to invoke § 42a-3-403 (2), which were raised by Horton’s counsel at the hearing, serve to sustain the validity of the trial court’s conclusion that the plaintiff had not shown probable cause for its action against Horton.

Even if the plaintiff could surmount this hurdle, we are not persuaded that the evidence at trial was insufficient, as a preliminary matter on a prejudgment remedy hearing, to rebut the presumption of Horton’s § 42a-3-403 (2) liability. The insurance premium note not only named the corporate debtor but expressly identified the corporation as its lone “maker-debtor.” The plaintiff’s witness Margolis, after having acknowledged that the defendant corporation was the debtor for whom insurance premiums had been paid, conceded that the plaintiff’s only basis for pursuing Horton was the fact of her signature. Counsel for the plaintiff disavowed any claim that the plaintiff had relied on Horton as a guarantor of the debts of the defendant corporation. There was therefore no claim, anywhere in the record below, that the plaintiff was misled into assuming that Horton’s ambiguous signature represented an undertaking of personal liability on her part. Had Wyandot, Inc. v. Gracey Street Popcorn Co., 208 Conn. 248, 544 A.2d 180 (1988), on which the plaintiff now relies, been cited to the trial court, it would not have been clear error for the court to have concluded that the facts before it were sufficient to distinguish the holding in that case.

The plaintiffs alternate claim, relying on General Statutes § 42a-3-415, is even less persuasive. The plaintiffs complaint nowhere alleges that Horton signed the insurance premium note as an accommodation party for the corporate defendant. Far from pursuing a contrary stance at the trial court hearing, counsel for the plaintiff expressly disavowed any claim that Horton was a guarantor. That disavowal inferentially encompassed any liability that Horton might possibly be alleged to have incurred under § 42a-3-415, since “an accommodation party is always a surety (which includes a guarantor), and it is his only distinguishing feature.” Connecticut General Statutes Annotated § 42a-3-415, comment 1 (West 1990). On this record, the plaintiff has failed to establish its entitlement to appellate review of this claim of error because the claim was not “distinctly raised at the trial.” Practice Book § 4185. Adherence to this rule of practice is particularly compelling in our review of a trial court’s largely discretionary disposition of an application for a prejudgment remedy.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 52-278d provides in relevant part: “hearing on PRE JUDGMENT REMEDY APPLICATION. DETERMINATION BY THE COURT. SERVICE of process, (a) The defendant shall have the right to appear and be heard at the hearing. The hearing shall be limited to a determination of whether or not there is probable cause to sustain the validity of the plaintiffs claim.”

       General Statutes § 52-278l (a) (1) provides in relevant part: “appeal, (a) An order (1) granting or denying a prejudgment remedy following a hearing under section 52-278d . . . shall be deemed a final judgment for purposes of appeal.”

       The two documents consisted of a “Customer Activity Report,” which was a ledger account detailing the corporate defendant’s indebtedness to the plaintiff, and an “Insurance Premium Financing Note and Security Agreement.”

       In his closing argument to the court, counsel for the plaintiff described Horton’s liability as follows: “Faye Horton signed as guarantor. She signed personally.” The court then inquired: “Signed what as guarantor?” Counsel replied: “She signed the note. Actually, it shouldn’t be as guarantor, it’s referenced in the note as debtor.”

       General Statutes § 42a-3-403 provides in relevant part: “signature by AUTHORIZED REPRESENTATIVE. (1) A signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. No particular form of appointment is necessary to establish such authority.
      “(2) An authorized representative who signs his own name to an instrument (a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity; (b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.”

       General Statutes § 42a-3-415 provides: “contract of accommodation party. (1) An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.
      “(2) When the instrument has been taken for value before it is due the accommodation party is liable in the capacity in which he has signed even though the taker knows of the accommodation.
      “(3) As against a holder in due course and without notice of the accommodation oral proof of the accommodation is not admissible to give the accommodation party the benefit of discharges dependent on his character as such. In other cases the accommodation character may be shown by oral proof.
      “(4) An endorsement which shows that it is not in the chain of title is notice of its accommodation character.
      “(5) An accommodation party is not liable to the party accommodated, and if he pays the instrument has a right of recourse on the instrument against such party.”

       In Wyandot, Inc. v. Gracey Street Popcorn Co., 208 Conn. 248, 544 A.2d 180 (1988), we reversed a trial court decision holding the drawer of a check personally liable without permitting him to introduce parol evidence that he had signed the check in a representative rather than an individual capacity. The instrument in that case contained the name of the corporate debtor, albeit in a form that varied slightly from the correct corporate name. We nonetheless held that, in a plenary proceeding, the drawer was entitled to have the opportunity “to prove that the obligation to pay the check was that of the corporation.” Id., 252. The case for corporate obligation is stronger on the present record because the insurance premium note not only identifies the corporate debtor correctly but designates the corporation as the maker-debtor. In Wyandot, Inc., furthermore, the trial court’s adverse ruling on the parol evidence issue had precluded the drawer of the check from making any record about whether the payee of the check had expected to hold the drawer personally liable for the obligation of the corporate debtor.


author: Glass, J.

text:
    Sally T. Miano et al. v. Doris G. Thorne
    (14118)
    Peters, C. J., Shea, Glass, Covello and Borden, Js.
    Argued January 10
    decision released March 26, 1991

      Christopher C. Noble, for the appellants (plaintiffs).

      Lloyd L. Langhammer, for the appellee (defendant).
   Glass, J.

The dispositive issue in this appeal is whether the 1955 enactment of General Statutes (Sup. 1955) § SOOOd, the first legislation in Connecticut authorizing courts to decree a “legal separation” of married persons, retroactively applies to previously entered equitable decrees of separate maintenance and support, thereby transforming such decrees into decrees of legal separation. Because § 3006d provided a remedy that altered substantive marital rights and obligations, we conclude that the legislature intended it to be prospective in application. Accordingly, we affirm the judgment of the trial court that the equitable decree of separate maintenance and support entered in 1953 in favor of the defendant, Doris G. Thorne, in her action against the now deceased Lawrence S. Thorne (decedent), was not transformed into a decree of legal separation by virtue of the subsequent enactment of § 3006d.

The material facts are not in dispute. The defendant and the decedent were married in Connecticut on January 2, 1939. Some years later, the couple experienced marital difficulties. On or about September 15, 1952, the defendant left the decedent to live elsewhere, taking with her the two minor children of the marriage, the plaintiffs, Sally T. Miaño and Dana T. Tartoff. Shortly thereafter, on September 24,1952, the defendant commenced an equitable action against the decedent in the Superior Court alleging that he had been habitually cruel to her and had neglected to support her and the plaintiffs. She sought relief in the form of: “(1) A decree requiring [the decedent] to support her and [the plaintiffs], and providing at least Twelve Hundred Dollars ($1,200.00) per month for that purpose; and a temporary allowance for the same amount; (2) A lump sum judgment in the amount of Fifty Thousand Dollars ($50,000.00); [and] (3) Such other relief as to equity may appertain.”

From the transcript of the subsequent trial, it is evident that the defendant and the decedent had reached an agreement regarding the financial orders to be issued by the court. The court rendered judgment in accordance with the agreement on May 7,1953, ordering, among other things, that the decedent make monthly payments to the defendant for the support of her and the plaintiffs. Because of the parties’ agreement, the issue of the decedent’s alleged cruelty was never factually resolved, even though the court’s memorandum of decision found all of the issues in favor of this defendant.

After the entry of the decree of separate maintenance and support, the defendant and the decedent continued to live separately up to and including the date of October 6, 1988, when the decedent died as a resident of West Palm Beach, Florida. It was later discovered that he had left a will naming the plaintiffs as the primary beneficiaries and residuary legatees of his estate. On January 25,1989, after the will had been submitted to probate in a Florida court, the defendant filed an application in that court seeking to exercise the election afforded to a “surviving spouse” under Florida law to claim a 30 percent share of the gross estate of a deceased spouse. See Fla. Stat. Ann. §§ 732.201, 732.207 (West 1976). The plaintiffs promptly challenged the defendant’s status as the surviving “spouse” of the decedent by filing this action in the Connecticut Superior Court for a declaratory judgment pursuant to General Statutes § 52-29. The defendant counterclaimed, alleging that she was in fact the spouse of the decedent from the date of her marriage until the date of his death.

Thereafter, the parties filed cross motions for summary judgment on the issue of whether the defendant remained married to the decedent until the date of his death. The plaintiffs argued that § 3006d applied retroactively to the decree of separate maintenance and support obtained by the defendant, and thus transformed the decree into one of legal separation. In addition, the plaintiffs maintained that the subsequent passage and retroactive application of Public Acts 1973, No. 73-373, § 7 (b) (1973 act), farther transformed the decree into one of legal separation “hav[ingj the effect of a decree dissolving the marriage,” thereby giving the defendant and the decedent “the status of unmarried persons.” The court rejected the plaintiffs’ arguments and rendered summary judgment in favor of the defendant. The plaintiffs appealed to the Appellate Court, and we transferred the appeal to this court in accordance with Practice Book § 4023.

The plaintiffs have presented two issues for our review: (1) whether the enactment in 1955 and retroactive application of § 3006d transformed the decree of separate maintenance and support entered in 1953 into a decree of legal separation; and (2) if the decree was so transformed, whether the passage and retroactive application of the 1973 act further transformed the decree into one giving the defendant the status of an “unmarried person.” Because we hold that § 3006d does not apply retroactively, we need not consider the plaintiffs’ second claim.

The starting point for our analysis of the plaintiffs’ claim that § 3006d applied retroactively is General Statutes § 55-3. Section 55-3 provides: “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); see Gormley v. State Employees Retirement Commission, 216 Conn. 523, 529, 582 A.2d 764 (1990). Accordingly, “we have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only.” Darak v. Darak, 210 Conn. 462, 467, 556 A.2d 145 (1989). This presumption is rebutted only when the legislature “ ‘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, [194 Conn. 165, 174, 479 A.2d 1191 (1984)]; Enfield Federal Savings & Loan Assn. v. Bissell, [184 Conn. 569, 572, 440 A.2d 220 (1981)].” Darak v. Darak, supra, 468. Moreover, although we have presumed that procedural or remedial statutes are intended to apply retroactively absent a clear expression of legislative intent to the contrary; Citizens Against Pollution Northwest, Inc. v. Connecticut Siting Council, 217 Conn. 143, 151, 584 A.2d 1183 (1991); “a statute which, in form, provides but a change in remedy but actually brings about changes in substantive rights is not subject to retroactive application.” Hunter v. Hunter, 177 Conn. 327, 332, 416 A.2d 1201 (1979). “The rule is one of obvious justice and prevents the assigning of a quality or effect to acts or conduct which they did not have or did not contemplate when they were performed.” Union Pacific R.R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199, 34 S. Ct. 101, 58 L. Ed. 179 (1913).

While § 3006d was intended to provide a new remedy for spouses desiring to live apart, the marital rights and obligations of spouses subject to a decree of legal separation were markedly different from those bound by an equitable decree of separate maintenance and support. The fundamental difference concerned the corollary marital rights and obligations of cohabitation and support. To obtain a decree of separate maintenance and support, an aggrieved spouse, typically a wife, was required to demonstrate in an equitable proceeding that she was “justified” in living apart from her husband. DeRosa v. DeRosa, 129 Conn. 409, 412, 28 A.2d 846 (1942). A wife alleging her husband’s cruelty as a ground for the entry of the decree, for example, could prevail with a showing of “something less than conduct which would constitute intolerable cruelty as a ground for divorce. It [was] sufficient if the husband [had] made it intolerable in any way for his wife to live with him.” Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 683, 116 A.2d 906 (1955); see Cantiello v. Cantiello, 136 Conn. 685, 689, 74 A.2d 199 (1950); Campbell v. Campbell, 110 Conn. 277, 279, 147 A. 800 (1929).

The nature of the relief afforded by the decree of separate maintenance and support, however, was limited. Rather than authorizing a wife’s continued separation from her husband, the decree provided only temporary relief from her obligation to cohabit with him as an incident to her right to receive his support. See Martin v. Martin, 134 Conn. 354, 356, 57 A.2d 622 (1948); see also 24 Am. Jur. 2d, Divorce and Separation § 4. A husband could at any time make a good faith offer of reconciliation, which would place his wife under an obligation to resume cohabitation if the original justification for her refusal to do so had passed. See Kurzatkowski v. Kurzatkowski, supra, 684; accord Martin v. Martin, supra, 358. If she unjustifiably rejected the offer of reconciliation, her right to support could be forfeited; see Kurzatkowski v. Kurzatkowski, supra, 683; DeRosa v. DeRosa, supra, 411; and she could be charged with willful desertion, a ground for divorce. See General Statutes (1949 Rev.) § 7327; Campbell v. Campbell, supra; see also 24 Am. Jur. 2d, supra, § 111.

By comparison, the decree of legal separation available under § 3006d, while leaving the bulk of the statutory and common law rights and obligations of married persons intact, terminated the right and corresponding obligation of cohabitation, thereby authorizing the continued separation of the parties to the decree. See Viglione v. Viglione, 22 Conn. Sup. 65, 69, 160 A.2d 501 (1960); see also Pettis v. Pettis, 91 Conn. 608, 617-18, 101 A. 13 (1917) (discussing similar decree of divorce a menso et thoro); see generally 24 Am. Jur. 2d, supra, §§ 4, 111; 1 H. Clark, Law of Domestic Relations (1987) § 7.4. Although cohabitation could be resumed at any time after the entry of the decree upon the mere filing of a written “declaration of resumption”; General Statutes (Sup. 1955) § 3006d; a wife could reject her husband’s offer of reconciliation without jeopardizing her right to support or incurring a charge of willful desertion. See generally 24 Am. Jur. 2d, supra, § 111; 1 H. Clark, supra. A husband, on the other hand, could not invoke his right to his wife’s cohabitation as an incident to his obligation to support her by simply improving his behavior and making the appropriate offer of reconciliation. 24 Am. Jur. 2d, supra, § 111; 1 H. Clark, supra.

The evident basis for the distinction between the rights and obligations of married persons bound by the respective decrees was that a wife seeking a decree of legal separation, unlike a wife bringing an equitable action for separate maintenance and support, was required to demonstrate, “in accordance with the procedures governing divorces,” that she “would be entitled to a divorce.” General Statutes (Sup. 1955) § 3006d. In other words, “[t]he existence of statutory grounds for a divorce must be established in such proceedings, such grounds as would justify the court in finally terminating the marriage relationship.” Viglione v. Viglione, supra, 70. A wife alleging that her husband had treated her cruelly was therefore required to establish that his behavior rose to the level of “intolerable cruelty,” a statutory ground for divorce; see General Statutes (1949 Rev.) § 7327; which entailed proof that “the cumulative effect of the [husband’s] cruelty upon the suffering [wife] has become such that the public and personal objects of matrimony have been destroyed beyond rehabilitation . . . .” McEvoy v. McEvoy, 99 Conn. 427, 432, 122 A. 100 (1923); see also Campbell v. Campbell, supra.

In view of the substantive disparity between the marital rights and obligations of spouses subject to the respective decrees, we presume that the legislature did not intend § 3006d retroactively to transform previously entered equitable decrees of separate maintenance and support, obtained upon a lesser degree of proof than that required for a divorce, into decrees of legal separation. The plaintiffs have not directed our attention to any “clear and unequivocal” language in § 3006d, nor do we find any upon an independent examination of the statute, that rebuts this presumption. Accordingly, we conclude that § 3006d did not apply retroactively, and hence did not transform the equitable decree of separate maintenance and support obtained by the defendant into a decree of legal separation.

Since the decree was not so transformed, the subsequent passage of the 1973 act, limited in application by its terms to “actions for divorce, annulment, and legal separation,” could not have further transformed the decree into one giving the defendant the status of an “unmarried person” even if retroactively applied.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes (Sup. 1955)] Sec. 3006d. legal separation. In any case in which a divorce might be decreed the superior court, on petition of the party who would be entitled to a divorce, may decree a legal separation of the parties, which separation shall have in all respects the effect of a divorce, except that the parties shall not thereby be made free to marry any third person and except as hereinafter provided. Upon such petition the procedure shall be the same as in actions for divorce, and the court shall have the same power in all matters relating to temporary and permanent orders for alimony, custody and support of children, and to allowances, as in cases of divorce. The parties to such action may at any time resume marital relations, upon filing with the clerk of the superior court for the county in which the separation was decreed their written declaration of such resumption, signed, acknowledged and witnessed. Such declaration shall be entered upon the docket, under the entries relating to such petition.” A related statute contemporaneously enacted was General Statutes (Sup. 1955) § 3007d, which provided: “DIVORCE SUBSEQUENT TO LEGAL SEPARATION. At any time after the entry of a decree of legal separation, either party may petition the superior court in the county where such decree was entered for a decree finally dissolving and terminating the marriage, and if the court finds that the parties have not resumed marital relations since the entry of the decree of legal separation, it may enter a decree finally dissolving and terminating the marriage and may affirm or modify any existing orders and may enter any additional orders relating to alimony, custody and support of children and allowances as are usual in divorce cases.”

       In its memorandum of decision, the court concluded that the defendant was married to the decedent on May 7,1953, the date of the entry of the decree of separate maintenance and support, but did not specifically address the issue of the retroactivity of General Statutes (Sup. 1955) § 3006d. The parties briefed and argued the issue before the court, however, and have treated the court’s decision, for purposes of appeal, as also indicating that no subsequent statutory enactment retroactively altered the original decree. Therefore, we also treat the court’s decision as including an implicit determination that § 3006d is not subject to retroactive application, and we affirm its decision on this ground.

       Counsel for the decedent stated at the hearing: “I want it understood in the record now that the statements made by the [wife] relating to the conduct of the [husband are] categorically denied by the [husband] and will be denied if those allegations are made again in the future. The reason for my statement is as we’ve arrived at an agreement, I don’t want the fact that we did not proceed or deny it and arrived at a settlement before he had an opportunity to go on the stand, that it stands undenied.”

       The plaintiffs filed an objection to the defendant’s application, which is currently pending in the Florida Probate Court.

       “[General Statutes] Sec. 52-29. superior court may declare rights and LEGAL RELATIONS, (a) The superior court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment.
      “(b) The judges of the superior court may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section.”

       Public Acts 1973, No. 73-373, § 7 (b) provides in pertinent part: “A decree of annulment or dissolution shall give the parties the status of unmarried persons and they may marry again. A decree of legal separation shall have the effect of a decree dissolving the marriage except that neither party shall be free to marry a third person. ...”

       See footnote 2, supra.

       The statement accompanying the bill that the legislature ultimately enacted as General Statutes (Sup. 1955) § 3006d explained that the proposed legislation “would . . . open up an avenue for those who do not want to bring a divorce action.” H. Bill No. 72 (1955 Sess).

       Where a wife’s refusal to live with her husband was the result of “a continued series of acts of cruelty,” this court held that “in order that the wife be under an obligation to resume cohabitation it is essential that something more appear than that the husband’s offers of reconciliation were made in good faith. It must also appear from the character of the man that there is a reasonable probability that he will not again indulge in acts of cruelty. DeRosa v. DeRosa, 129 Conn. 409, 411, 28 A.2d 846 (1942).” Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 684, 116 A.2d 906 (1955).

       Despite the broad language of General Statutes (Sup. 1955) § 3006d stating that a decree of legal separation “shall have in all respects the effect of a divorce, except that the parties shall not thereby be made free to marry any third person,” the statute was construed to have the following limited effect: “Each separated husband and wife retain[ed] all the statutory rights of property, inheritance and administration in the estate of the other together with all the obligations of the continuing marriage contract except for those concerned with cohabitation.” (Emphasis added.) Viglione v. Viglione, 22 Conn. Sup. 65, 69, 160 A.2d 501 (1960); see 24 Am. Jur. 2d, Divorce and Separation § 1.

       The statement attached to the bill that eventually was enacted as General Statutes (Sup. 1955) § 3006d described the effect of a decree of legal separation as follows: “The separation decree sanctions the refusal of the wife to cohabit.” H. Bill No. 72 (1955 Sess.).

       This conclusion is reinforced by a reading of the statute in conjunction with its concurrently enacted companion provision, General Statutes (Sup. 1955) § 3007d. See footnote 1, supra. Section 3007d permitted “either party” to a legal separation decree to petition for and obtain a decree “finally dissolving and terminating the marriage” upon a showing that cohabitation had not resumed since the entry of the legal separation decree. The dissolution decree available under § 3007d, although bearing a different label, was the functional equivalent of a decree of divorce, which could not, under the law existing in 1955, be obtained upon a mere showing of the absence of cohabitation, over a period of time. See General Statutes (1949 Rev.) § 7327. Rather, it was necessary to establish “fault” on the part of the spouse against whom the divorce action was brought, i.e., the existence of a statutory ground for divorce. See General Statutes (1949 Rev.) § 7327; see also Viglione v. Viglione, 22 Conn. Sup. 65, 69-70, 160 A.2d 501 (1960). The availability of a “conversion divorce” under § 3007d, however, was not considered a material change in the public policy of this state because it could be obtained only by parties to a legal separation decree that had been entered in accordance with General Statutes (Sup. 1955) § 3006d, which required, as a prerequisite to the entry of the decree, that the existence of a statutory ground for divorce be established. See General Statutes (Sup. 1955) § 3006d; see generally Viglione v. Viglione, supra.
      Because an equitable decree of separate maintenance and support could be obtained without establishing grounds for divorce; see, e.g., Kurzatkowski
        v. Kurzatkowski, 142 Conn. 680, 683, 116 A.2d 906 (1955); the transformation of such decrees into decrees of legal separation by the retroactive application of § 3006d would have permitted either spouse bound by the equitable decree to obtain, under § 3007d, a decree finally dissolving and terminating the marriage without the requisite showing of “fault.” Such a result would have been inconsistent with “the long established policy of this State which regards marriage as a life status and indissoluble save for such causes as in effect repudiate and annul the marriage covenant. These causes are specified by our statute law . . . (Emphasis in original.) Swist v. Swist, 107 Conn. 484, 489-90, 140 A. 820 (1928). Moreover, since the decedent’s alleged habitual cruelty was never conclusively established in the defendant’s action for separate maintenance and support, it would be particularly inappropriate to apply § 3006d retroactively in this case. Legislation will not be applied retroactively if “good sense and justice dictate otherwise.” East Village Associates, Inc. v. Monroe, 173 Conn. 328, 332, 377 A.2d 1092 (1977).

       In this respect, we note that the statement accompanying the bill that ultimately became General Statutes (Sup. 1955) § 3006d stated that the legislation proposed by the bill “would not take away anyone’s right to pursue present remedies.” H. Bill No. 72 (1955 Sess.).