author: Berdon, J.

text:
    Tammy B. Stephan v. Pennsylvania General Insurance Company et al. Phoenix General Insurance Company v. Tammy B. Stephan
    (14490)
    Borden, Berdon, Norcott, F. X. Hennessy and Ment, Js.

      Argued October 2, 1992
    decision released March 2, 1993

      Michael P. DelSole, for the appellant-appellee (Tammy B. Stephan).

      Eileen M. Condon, with whom were Joseph F. Trotta and, on the brief, Frederick J. Trotta, for the appelleeappellant (Phoenix General Insurance Company).
   Berdon, J.

This appeal presents the following issues: (1) whether the trial court improperly allowed Pennsylvania General Insurance Company (Pennsylvania) and Phoenix General Insurance Company (Phoenix), which provided underinsured motorist coverage, to limit their liability to the insured by taking credit for liability payments made to other claimants; and (2) whether the trial court abused its discretion by awarding the insured statutory interest on the arbitration award from the date of the award. We conclude that the policy language in this case prevents the insurers from taking credit for payments made to other individuals, and that it was within the trial court’s discretion to award statutory interest to the insured.

The parties agreed to the following facts. On October 7,1987, while riding as a passenger in a vehicle that she owned, Tammy B. Stephan sustained severe personal injuries when her vehicle collided with another vehicle operated by Lila Simpson. Negligence on the part of both the operator of Stephan’s vehicle and Simpson caused the accident. Simpson was insured by Colonial Penn Insurance Company (Colonial) under a policy providing liability limits of $100,000 per person and $300,000 per accident. Stephan released Simpson from liability when she recovered $100,000 from Colonial.

Stephan’s insurance policy with Pennsylvania provided $100,000 single limit liability coverage and $200,000 underinsured motorist protection. The single limit liability policy with Pennsylvania was exhausted when it was divided among Stephan, Simpson and another passenger who had been injured in the accident. Stephan received $28,500 of the $100,000 total, and Simpson and the other passenger received the remaining $71,500. In addition, Stephan, as a resident of her parents’ household, was entitled to $600,000 underinsured motorist benefits under a policy issued to Stephan’s parents by Phoenix.

After receiving $28,500 from Pennsylvania and $100,000 from Colonial, Stephan made a demand on Pennsylvania and Phoenix for arbitration pursuant to the underinsured motorist provisions of their policies. During arbitration, the parties agreed that liability was not an issue, that all underlying insurance had been exhausted, and that the amount of the underinsured motorist award owed to Stephan would be prorated between Pennsylvania and Phoenix. The issues before the arbitrators included: (1) the total damages sustained by Stephan; (2) the amount of underinsured motorist coverage each insurer provided; and (3) the credits to which the insurers were entitled. The majority of the arbitrators concluded that: (1) Stephan had sustained damages totaling $450,000 as a result of the injuries she incurred in the accident; (2) the underinsured motorist coverage totaled $800,000 (Pennsylvania in the aggregate amount of $200,000 and Phoenix in the aggregate amount of $600,000); and (3) the $450,000 damages owed to Stephan by Phoenix and Pennsylvania should be reduced by $200,000. The arbitrators arrived at the $200,000 credit by totaling the $100,000 paid to Stephan by Colonial, the $28,500 paid to Stephan by Pennsylvania, and the $71,500 paid by Pennsylvania to Simpson and another passenger who had been injured in the accident. As a result, the arbitrators concluded that the net amount due to Stephan was $250,000.

Stephan filed an application in the Superior Court pursuant to General Statutes § 52-419 to correct or modify the award of the arbitrators. Stephan claimed that Pennsylvania and Phoenix could not limit their liability by taking credit for $71,500 paid to Simpson and another injured passenger. Instead, Stephan claimed that she was entitled to a net award of $321,500, calculated by deducting the $100,000 paid by Colonial and the $28,500 paid by Pennsylvania from the total damages of $450,000. She also made a claim for interest on the award. Phoenix filed an application pursuant to General Statutes § 52-417 to confirm the arbitrators’ award. Pennsylvania did not initiate any action in the Superior Court, but was named a party to the proceedings in Stephan’s application to correct or modify the award.

The trial court denied Stephan’s application to correct or modify the award, but allowed interest on the award from the date of the arbitrators’ decision. Stephan appealed from the judgments of the trial court to the Appellate Court, and Phoenix filed a cross appeal. We transferred the appeal and cross appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

I

We begin our analysis by determining whether the terms of Stephan’s insurance policies permitted Phoenix and Pennsylvania to reduce the damages owed to her by taking credit for payments made to others injured in the accident. If we determine that the policies do not allow the reduction, we need not go further to ascertain whether the reduction would be valid under General Statutes § 38a-336 (b), formerly General Statutes § 38-175c (b) (1), or § 38-175a-6 (d) of the Regulations of Connecticut State Agencies. Upon judicial review of compulsory arbitration proceedings pursuant to § 38a-336 (c), “the reviewing court must conduct a de novo review of the interpretation and application of the law by the arbitrators.” American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987).

“An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy.” Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702, 569 A.2d 1131 (1990). The policy words must be accorded their natural and ordinary meaning. Kelly v. Figueiredo, 223 Conn. 31, 35, 610 A.2d 1296 (1992). Under well established rules of construction, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy. Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 375, 593 A.2d 498 (1991). This rule of construction may be not applied, however, unless the policy terms are indeed ambiguous. Kelly v. Figueiredo, supra, 37. Moreover, the mere fact that the parties advance different interpretations of the language in question “ ‘does not necessitate a conclusion that the language is ambiguous.’ ” Id.

Both the Phoenix and Pennsylvania policies contain identical exclusionary language as follows: “Any amounts otherwise payable for damages under this coverage shall be reduced by all sums: (1) Paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A . . . .”

The gravamen of Stephan’s claim is that Phoenix and Pennsylvania may not deduct payments made to other parties because their policies provide that the insurer may reduce the damages owed to the claimant by the amount of “the bodily injury.” (Emphasis added.) The policies do not say “a bodily injury,” or “any bodily injury,” or “all bodily injuries,” but are expressly limited to the singular “the bodily injury.” (Emphasis added.) This phrase undoubtedly refers to the claimant’s bodily injury, and not to any other bodily injuries.

As a definite article, the word “the” refers to a specific object whereas the indefinite articles “a” and “an” refer to unlimited objects. Webster’s Third New International Dictionary. To interpret “the bodily injury” to mean “a bodily injury” or “any bodily injuries” would be to distort the plain and unambiguous meaning of this simple phrase. Indeed, as we noted above, even if the policy language were ambiguous, standard rules of construction mandate that we construe such ambiguity against the insurer. Streitweiser v. Middlesex Mutual Assurance Co., supra, 375. We conclude that the policies did not permit Phoenix and Pennsylvania to reduce the damages owed to Stephan by taking credit for payments made to others. Accordingly, we need not determine whether the reduction would be permitted by General Statutes § 38a-336 (b) or § 38-175a-6 (d) of the Regulations of Connecticut State Agencies.

II

In its cross appeal, Phoenix challenges the trial court’s award of interest to Stephan “from the date of the arbitration award . . . to the date of this judgment ... at the rate escribed by General Statutes § 37-3a.” Whether interest should be allowed as an element of damages “is primarily an equitable determination and a matter within the discretion of the trial court.” (Internal quotation marks omitted.) Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 701-702, 590 A.2d 957 (1991). The court’s determination should be made “in view of the demands of justice rather than through the application of any arbitrary rule.” (Internal quotation marks omitted.) Id., 702. Whether interest may be awarded depends on whether the money involved is “payable”; General Statutes § 37-3a; see White Oak Corporation v. Department of Transportation, 217 Conn. 281, 302, 585 A.2d 1199 (1991); and “whether the detention of the money is or is not wrongful under the circumstances.” (Internal quotation marks omitted.) Middlesex Mutual Assurance Co. v. Walsh, supra.

Phoenix argues that Stephan is not entitled to interest because her decision to challenge the award caused the payment delay. This argument would effectively deny interest to every appellant. Of course, the simple answer is that Phoenix could have prevented interest from running on the undisputed portion of the award simply by paying that portion of the award. Furthermore, it is “well established that we will not overrule the trial court’s award of interest absent a clear abuse of discretion.” Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 676, 591 A.2d 101 (1991). Phoenix has not sustained its burden of showing that the trial court abused its discretion in this case.

Nevertheless, because this decision has increased the net award to Stephan by disallowing a reduction of $71,500 paid to others, and because the award of interest is within the sound discretion of the trial court to be made in view of the demands of justice on the basis of equitable principles, the issue of whether interest should run on the net award allowed by the arbitrators ($250,000), or the amount as modified by this court ($321,500), is a matter for the trial court to determine.

The judgments are reversed in part and the cases are remanded to the trial court with direction to modify the judgments to allow Stephan a net award of $321,500 and to determine the amount upon which interest should run.

In this opinion the other justices concurred.

       Stephan was insured under the Pennsylvania policy for both of her automobiles, each of which had uninsured motorist limits of $100,000. Therefore, she had a total of $200,000 uninsured motorist coverage under the Pennsylvania policy. Nationwide Ins. Co. v. Gode, 187 Conn. 386, 446 A.2d 1059 (1982). Statutes and regulations that are applicable to uninsured motorist coverage also apply to underinsured motorist coverage. Lumbermens Mutual Casualty Co. v. Huntley, 223 Conn. 22, 28 n.9, 610 A.2d 1292 (1992).

       General Statutes § 52-419 provides in pertinent part: “(a) Upon the application of any party to an arbitration, the superior court . . . shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.”

       General Statutes § 52-417 provides in pertinent part: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court . . . for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       General Statutes § 37-3a provides in pertinent part: “[Ijnterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings . . . .”

       Phoenix and Pennsylvania also argue that this court’s interpretation of a similar policy in American Motorists Ins. Co. v. Gould, 213 Conn. 625, 569 A.2d 1105 (1990), permits them to reduce their damages to Stephan by amounts paid to others. In that case we concluded that the phrase “ ‘[a]ll
        sums paid . . . ’ must be construed to refer to payments made to other victims as well as the [amount] paid to the defendant.” (Emphasis added.) Id., 636. Our conclusion in American Motorists Ins. Co. is not controlling in this case, however, because we did not interpret the phrase “the bodily injury.”

       See footnote 4.


source: Caselaw Access Project

license: Public Domain

text:
    Debra Buell v. American Universal Insurance Company
    (14488)
    Borden, Berdon, Norcott, F. X. Hennessy and Ment, Js.

      Argued October 2, 1992
    decision released March 2, 1993

      Steven D. Ecker, with whom, on the brief, was Howard A. Jacobs, for the appellant-appellee (plaintiff).

      Stephen G. Murphy, Jr., for the appellee-appellant (defendant).
   Berdon, J.

This appeal, which is the companion case to Stephan v. Pennsylvania General Ins. Co., 224 Conn. 758, 621 A.2d 258 (1993), presents the following issues: (1) whether the trial court properly allowed the defendant, American Universal Insurance Company (American), which provided underinsured motorist coverage, to limit its liability to the insured by taking credit for a liability payment made to another claimant; (2) whether the trial court abused its discretion by awarding the insured statutory interest on the arbitration award from the date of the award; (3) whether the trial court properly ruled that the plaintiff, Debra Buell, had exhausted all applicable bodily injury policies, thereby entitling her to underinsured motorist coverage; and (4) whether the trial court properly ruled that American was not entitled to take credit for a $2500 settlement payment made to Buell.

The following facts are undisputed. On April 9,1986, Buell was operating her automobile on Route 1 in East Haven. She was accompanied by a passenger, Pearly Nivens. Buell’s automobile was stopped at a traffic light in front of an automobile operated by Joan Lozier, when a third vehicle, operated by Patricia Vorio, collided with Lozier’s vehicle. Lozier’s vehicle, in turn, collided with Buell’s vehicle. Buell, who was injured in the accident, brought suit against Lozier and Vorio, alleging that both were negligent.

Vorio was insured by Aetna Casualty and Surety Company (Aetna) under a policy that provided $50,000 single limit liability coverage. The coverage available under the Aetna policy was divided between Buell, who received $29,000, and Nivens, who received $21,000. Lozier was insured by American under a policy that provided $100,000 liability coverage. Buell received $2500 and Nivens received $3500 under Lozier’s policy with American.

Buell, who was also insured by American, made a demand for arbitration under the terms of her policy, which provided a total of $100,000 underinsured motorist coverage. The arbitration panel concluded that Vorio’s negligence was the proximate cause of the accident, and that no credible evidence had been introduced to show that Lozier had been negligent. The majority of the arbitrators found that Buell had suffered $78,000 in damages. They reduced that amount by the $29,000 payment made by Aetna and by the $2500 payment made by American, arriving at a total award of $46,500.

American sought to vacate the arbitration award pursuant to General Statutes § 52-418. Buell in turn sought to confirm the arbitration award pursuant to General Statutes § 52-417 and filed a motion for an award of interest under General Statutes § 37-3a from the date of the arbitration award.

The trial court modified the award, holding that it should be further reduced by the $21,000 payment made to Nivens. The court also held, however, that the award should not be reduced by the $2500 payment made to Buell under Lozier’s policy. As modified, the total award amounted to $28,000. In addition, the court awarded interest on the award from the date of the arbitration. Buell appealed from the judgment of the trial court to the Appellate Court and American filed a cross appeal. We transferred the appeal and cross appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

I

We first address Buell’s claim that the trial court improperly determined that American’s policy permitted it to reduce the amount of her award by taking credit for the $21,000 payment made to Nivens by Aetna. “In reviewing compulsory arbitration cases, this court must conduct a de novo review of the arbitrator’s interpretation and application of the law. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987).” Lumbermens Mutual Casualty Co. v. Huntley, 223 Conn. 22, 26, 610 A.2d 1292 (1992). In assessing the merits of this claim, we are guided by our holding in the companion case, Stephan v. Pennsylvania General Ins. Co., supra, which presented the very same issue. The policy language in this case is similar to the policy language in Stephan and provides: “The limit of liability shall be reduced by all sums: (1) Paid because of the ‘bodily injury’ by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A . . . .” Here, as in Stephan, the policy provides that the insurer may limit its liability by payments made because of “the bodily injury,” not “a bodily injury” or “any bodily injury.” We conclude that this phrase refers only to the claimant’s bodily injury and not to the bodily injuries of others. Accordingly, the policy did not permit American to reduce the damages owed to Buell by taking credit for the payment to Nivens. Moreover, because the policy does not permit the insurer to take credit for this payment, we need not go further to determine whether General Statutes § 38a-336 (b) or § 38-175a-6 (d) of the Regulations of Connecticut State Agencies would permit the credit.

II

In its cross appeal, American claims that the trial court improperly awarded interest to Buell from the date of the arbitration award pursuant to General Statutes § 37-3a. As we noted in Stephan v. Pennsylvania General Ins. Co., supra, 765, “[wjhether interest should be allowed as an element of damages is primarily an equitable determination and a matter within the discretion of the trial court. . . Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 701-702, 590 A.2d 957 (1991).” (Internal quotation marks omitted.) In determining whether to award interest, the trial court must determine whether the money involved is “payable”; General Statutes § 37-3a; see White Oak Corporation v. Department of Transportation, 217 Conn. 281, 302, 585 A.2d 1199 (1991); and whether the money was “wrongfully” withheld. White Oak Corporation v. Department of Transportation, supra. Only upon a showing of a clear abuse of discretion will we overturn the trial court’s award of interest. Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 676, 591 A.2d 101 (1991). American argues that the trial court abused its discretion by awarding interest in this case because American was placed into receivership on the date that the arbitration award was made. This fact and others were before the court when it exercised its discretion to allow interest on the award. American has not demonstrated that the trial court abused its discretion in this case.

Because this decision increases the net award to Buell by reinstating the arbitrators’ original award of $46,500 in place of the trial court’s award of $28,000, and because the award of interest is a matter of discretion to be decided by the trial court, we remand this case to the trial court to determine the amount upon which interest should run. Stephan v. Pennsylvania General Ins. Co., supra.

Ill

In its cross appeal, American also claims that the trial court improperly ruled that Buell had exhausted all applicable bodily injury policies so as to be entitled to underinsured motorist coverage. We recently decided this issue in General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 603 A.2d 385 (1992). There, we held that under the provisions of General Statutes § 38a-336 (b) and (d), an insured is required to exhaust the “liability bond or insurance policies” of only one tortfeasor in order to be eligible to pursue underinsured motorist benefits. Id., 214. In the present case, it is undisputed that Vorio’s policy with Aetna had been exhausted. Following our reasoning in General Accident Ins. Co. v. Wheeler, supra, we conclude that the trial court correctly held that Buell had exhausted all applicable bodily injury policies, thereby entitling her to underinsured motorist coverage.

IV

American’s final claim in its cross appeal is that the trial court improperly ruled that it was not entitled to take credit for the $2500 payment that Buell received under Lozier’s policy with American. We conclude that American was entitled to deduct the $2500 payment from the total damages owed to Buell.

The policy at issue in this case specifically provided that “no one will be entitled to receive duplicate payments for the same elements of loss.” In this case the “element of loss” is Buell’s bodily injury from the accident. The $2500 payment, which was made in settlement of Buell’s suit against Lozier, served two purposes—to avoid litigation of the claim against Lozier and to compensate Buell for her bodily injuries. As a result, if American were not permitted to deduct the $2500 payment made by Lozier’s insurer, Buell would receive duplicate payments for her bodily injury. Accordingly, the plain language of the policy permits American to deduct the $2500 payment to prevent duplicate recovery.

Buell argues that even if the policy permits the reduction, it is not permitted by General Statutes § 38a-336 (b) and § 38-175a-6 (d) of the Regulations of Connecticut State Agencies because it is not a payment made “by or on behalf of any person responsible for the injury.”

We have previously held that § 38-175a-6 (d) (1) permits an insurer who provides underinsured motorist coverage to limit its liability by taking credit for a personal payment made by a tortfeasor to the insured. Lumbermens Mutual Casualty Co. v. Huntley, supra, 30. The trial court in this case concluded, however, that because the arbitrators had determined that Lozier was not at fault in causing the accident, the $2500 payment made by American on behalf of Lozier could not be deducted because it was not made “by or on behalf of any person responsible for the injury.” We disagree.

As noted above, the payment in this case settled the lawsuit between Lozier and Buell. Although the arbitrators determined that Lozier was not at fault for purposes of arbitration, the issue of Lozier’s liability was never formally litigated. Lozier was not a party to the arbitration. At issue, then, is whether a settlement payment constitutes a payment made “by or on behalf of any person responsible for the injury.”

We have previously held that the plain words of § 38a-336 (b) “simply require that each policy provide a minimum level of uninsured [underinsured] motorist coverage for the protection of persons insured thereunder.” (Internal quotation marks omitted.) Wilson v. Security Ins. Co., 213 Conn. 532, 538, 569 A.2d 40, cert. denied, 498 U.S. 814, 111 S. Ct. 52, 112 L. Ed. 2d 28 (1990). “The public policy established by the uninsured [underinsured] motorist statute is that every insured is entitled to recover for the damages he or she would have been able to recover if the uninsured [underinsured] motorist had maintained a policy of liability insurance. Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982); American Universal Ins. Co. v. DelGreco, supra, 197. It is a time-honored rule that an injured party is entitled to full recovery only once for the harm suffered. Peck v. Jacquemin, 196 Conn. 53, 70 n.19, 491 A.2d 1043 (1985). An insured may not recover double payment of damages under overlapping insurance coverage. Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 452, 370 A.2d 1006 (1976).” (Internal quotation marks omitted.) Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 18, 615 A.2d 1032 (1992).

With this background in mind, we consider whether § 38-175a-6 (d) (1), which permits an insurer to limit its liability by deducting amounts “paid by or on behalf of any party responsible for the injury,” allows an insurer to deduct a settlement payment from the damages owed to its insured. In light of the legislative intent to provide a certain minimum level of protection, but to prevent double recovery on the part of the insured, we conclude that an insurer may limit its liability by deducting a settlement payment from the damages owed to its insured. To hold otherwise would provide the insured a windfall by permitting duplicate payments for the same injury. The arbitrators properly determined that American was entitled to limit its liability by taking credit for the $2500 payment to Buell.

The judgment is reversed in part and the case is remanded to the trial court with direction to modify the judgment by reinstating the arbitrators’ award of $46,500 and to determine the amount upon which interest should run.

In this opinion the other justices concurred.

       Buell was insured under the American policy for both of her automobiles, each of which had underinsured motorist limits of $50,000. She therefore had a total of $100,000 underinsured motorist coverage under the American policy. Nationwide Ins. Co. v. Gode, 187 Conn. 386, 446 A.2d 1059 (1982). We have often held that statutes and regulations that apply to uninsured motorist coverage equally apply to underinsured motorist coverage. Lumbermens Mutual Casualty Co. v. Huntley, 223 Conn. 22, 28 n.9, 610 A.2d 1292 (1992); General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 210-11, 603 A.2d 385 (1992); Nationwide Ins. Co. v. Gode, supra, 399-400.

       General Statutes § 52-418 provides in relevant part: “(a) Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       General Statutes § 52-417 provides in pertinent part: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court ... for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and

       General Statutes § 37-3a provides in pertinent part: “[IJnterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings ... .”

       See footnote 4.

       During arbitration, the parties stipulated that Vorio’s policy with Aetna had been exhausted, but that Lozier’s policy with American had not been exhausted.

       General Statutes § 38a-336 (b), formerly General Statutes § 38-175e (b) (1), provides: “An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured [underinsured] motorist coverage after the limits of liability . . . have been exhausted by payment of judgments or settlements . ...”

       Section 38-175a-6 (d) of the Regulations of Connecticut State Agencies provides in relevant part: “The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been (1) paid by or on behalf of any person responsible for the injury. ...”

       We have often held that “ ‘[w]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.’ ” Weinberg v. ARA Vending Co., 223 Conn. 336, 341, 612 A.2d 1203 (1992). If, however, the statute is ambiguous, we turn to the legislative history for guidance. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 188, 592 A.2d 912 (1991); Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 637-38, 513 A.2d 52 (1986).


author: Katz, J.

text:
    Kent Knock v. Lynn Knock
    (14426)
    (14429)
    Peters,. C. J., Callahan, Berdon, Norcott and Katz, Js.

      Argued December 3, 1992
    decision released March 2, 1993

      Arnold H. Rutkin, with whom, on the brief, were Daiga Osis and Kathleen A. Hogan, for the appellant in Docket No. 14426 (minor child).

      Veronica E. Reich, for the appellant in Docket No. 14429 (plaintiff).

      Carolyn Richter, with whom were Jeanne G. Miterko and Claudine Siegel, for the appellee in both appeals (defendant).
   Katz, J.

In this marital dissolution action, the plaintiff, Kent Knock, and the counsel for the minor child, Moriah Knock, claim that the trial court improperly: (1) allowed into evidence, and relied upon, testimony of an expert witness (a) who had not been properly disclosed under Practice Book § 220 (D); and (b) who was not qualified to testify regarding the issue of custody and whose testimony was not relevant to the best interests of the child; (2) awarded custody of the parties’ minor child to the defendant, Lynn Knock; (3) exhibited bias against the minor child’s appointed counsel; and (4) limited the role of counsel for the minor child. The plaintiff also claims that the trial court abused its discretion in its financial orders concerning distribution of the marital property. We affirm the judgment of the trial court.

The trial court could reasonably have found the following facts. The plaintiff and the defendant were married in Seattle, Washington, on July 31, 1982. The plaintiff has a doctorate in chemistry from Arizona State University; the defendant attended the University of Washington for three years and ultimately obtained her college degree from Housatonic Community College in May, 1991. Although both parties worked at Boeing Aircraft in Seattle at the time of their marriage, the defendant was laid off within six months of the marriage and, except for holding a few sporadic jobs, has generally not worked outside the home since that time. In 1983, the plaintiff received an offer of employment at Sikorsky Aircraft and the parties moved to Trumbull. On December 26, 1984, the defendant gave birth to Moriah, the only child of the marriage. On March 6, 1990, the plaintiff brought a dissolution action.

The parties’ marriage was beset by problems from the outset, including both verbal battles and physical altercations. The defendant accused the plaintiff of physical abuse, while the plaintiff characterized his actions as deflecting or restraining the defendant’s attacks on him. Each party saw the other as the instigator of such disputes. The plaintiff occasionally bruised the defendant and withheld sex and affection because he did not think she deserved them. The plaintiff called the defendant derogatory names, countermanded her instructions to the minor child and generally treated her as a servant who was unable to please him. In 1985, the defendant went to a walk-in clinic and was referred to the YWCA battered woman’s program. In 1987, the plaintiff was arrested on the defendant’s complaint that the plaintiff had physically abused her. The defendant attended counseling intermittently at the YWCA battered woman’s program until 1990, when she moved out of the marital home with the minor child. During the dissolution proceedings, the defendant became involved with another man and became pregnant with his child. The defendant planned to marry the other man after the dissolution of the parties’ marriage had become final.

The trial court heard expert testimony relating to the issue of custody from the family relations counselor, Jennifer Luise, from the court appointed evaluator, Mark Jay Gang, a licensed psychologist, and from Eduardo Baez, also a licensed psychologist. Gang, who met with the defendant, the plaintiff, the minor child and the defendant’s fiance, recommended that custody of the minor child be awarded to the plaintiff. Baez, who met only with the plaintiff, also recommended that custody be awarded to the plaintiff. Luise, who met with the defendant, the plaintiff, the minor child and the defendant’s fiance, recommended that custody be awarded to the defendant. The court also heard testimony pertaining to battered woman’s syndrome by Evan Stark, a sociologist, who met with the defendant and concluded that she had been a victim of battered woman’s syndrome.

The trial court rendered final judgment on June 12, 1991, dissolving the marriage of the parties on the ground that the marriage had broken down irretrievably. The dissolution decree awarded primary custody of the child to the defendant with reasonable visitation rights to the plaintiff. The trial court also entered specific financial orders, which will be discussed as they become relevant. The plaintiff and the minor child appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

I

The plaintiff claims that the trial court improperly-admitted Stark’s testimony because: (1) the defendant had failed to comply with the disclosure requirements of Practice Book § 220 (D); and (2) Stark was not qualified to testify as to custody and his testimony was not relevant to the court’s custody determination. We disagree.

A

The plaintiff first contends that the trial court improperly admitted Stark’s testimony because the defendant had failed to comply with Practice Book § 220 (D). Specifically, the plaintiff contends that the defendant violated Practice Book § 220 (D) by failing to make a timely written disclosure of Stark’s name, the subject matter on which he was expected to testify, the substance of the facts and opinions to which he was expected to testify and the summary of the grounds for each opinion. Because of the defendant’s noncompliance with the requirements of § 220 (D), the plaintiff claims that Stark’s testimony should have been excluded and that the trial court had therefore improperly exercised its discretion in allowing him to testify.

The facts relevant to this claim are as follows. This case was claimed to the trial list on January 30, 1991, and the trial began on April 23, 1991. Prior to April 10, 1991, there had been two experts disclosed, the family relations counselor, Luise, and the court appointed psychologist, Gang. Luise’s evaluation favored the defendant, while Gang’s position was neutral. Due to financial constraints, the defendant had not sought any additional expert assistance.

On April 10, 1991, Gang changed his recommendation to favor the plaintiff’s position. On April 12, 1991, the plaintiff disclosed another expert witness, Baez, who also favored the plaintiff’s position. At that point the defendant decided that expert assistance had become essential to her case. The defendant was able to obtain Stark as an expert within a short period of time. She disclosed the expert to the plaintiff by phone, the day before the trial commenced and more than three weeks before Stark was to testify. The plaintiff did not move for a continuance.

Practice Book § 220 (D) provides in relevant part that “any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. Each defendant shall disclose the names of his or her experts in like manner within 120 days from the date the case is claimed to a trial list. If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after that date, such expert shall not testify except in the discretion of the court for good cause shown.”

The plaintiff concedes that the defendant orally disclosed her intention to use Stark as an expert witness on April 22, 1991, fewer than 120 days from January 30, 1991, when the case had been claimed to a trial list. The plaintiff claims, however, that the disclosure was not made in writing and that, even if it is found to be within the technical requirements of § 220 (D), the last minute disclosure imposed an unfair burden on the plaintiff.

Practice Book § 220 (D) does not explicitly require that the disclosure be in writing. The plaintiff has not cited, nor have we found, any case in which we have concluded that a writing is required. The discovery rules, however, “are designed to make a ‘ “trial less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.” ’ ” Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 106, 476 A.2d 1074 (1984), quoting United States v. Proctor & Gamble Co., 356 U.S. 677, 682, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958); see also Pool v. Bell, 209 Conn. 536, 541, 551 A.2d 1254 (1989). Although the text of the rule does not explicitly require the writing, in order for the trial court to proceed with the orderly flow of business, disclosure must be made in writing. It would be a cumbersome task for a trial court to determine a party’s compliance with § 220 (D) without a written disclosure. The record discloses that the defendant did not comply with the requirements for a written disclosure of her intent to call Stark as an expert witness.

The trial court, however, had the discretion to allow Stark to testify despite noncompliance with § 220 (D), if good cause was shown. Berry v. Loiseau, 223 Conn. 786, 800, 614 A.2d 414 (1992); Eslami v. Eslami, 218 Conn. 801, 803, 591 A.2d 411 (1991); Wilhelm v. Czuczka, 19 Conn. App. 36, 43, 561 A.2d 146 (1989). “Neither § 220 (D) nor the cases interpreting it define what constitutes ‘good cause.’ The language of the rule, however, makes clear that the trial court is to exercise broad discretion in determining whether good cause exists in a given case.” Berry v. Loiseau, supra. In determining whether the trial court has abused its discretion, an appellate court should entertain every reasonable presumption in favor of the trial court’s decision. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985).

The defendant claims that because of financial constraints, she had not initially sought out an expert witness. She says she felt expert assistance became essential to her case only after Gang changed his position to favor the plaintiff and the plaintiff retained yet an additional expert witness. In light of the short period of time the defendant had to obtain an expert witness, the plaintiff’s failure to ask for a continuance, implicitly suggesting that he had sufficient time within which to prepare for Stark, and the three weeks that the plaintiff actually had to prepare for cross-examination, there was evidence to support a finding of “good cause.” The trial court, therefore, did not abuse its discretion in permitting him to testify.

B

The plaintiff and the minor child next claim that Stark’s testimony was improperly admitted because he was not qualified to testify and his testimony was not relevant to the determination of custody. We conclude that Stark was qualified to testify as to battered woman’s syndrome and that battered woman’s syndrome is relevant to the determination of custody.

“ ‘The determination of the qualification of an expert is largely a matter for the discretion of the trial court.’ ” Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73 (1964). “The trial court’s decision is not to be disturbed on appeal ‘unless that discretion has been abused, or the error is clear and involves a misconception of the law.’ ” Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973). In order to testify as an expert, an expert must demonstrate “a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue.” Id.

The plaintiff and the minor child concede that Stark is an expert on the subject of battered woman’s syndrome. At trial, it was established that Stark had a doctorate in sociology and a masters degree in social work. He had also trained health care providers in the area of domestic violence and its impact on the health of women. Further, Stark had been involved in research studies at Yale-New Haven Hospital on the subjects of battered women, the relationship between battering and child abuse and the effects of battering on batterers. Moreover, he had implemented treatment programs for batterers. In light of his credentials, we conclude that the trial court was well within its discretion in finding Stark qualified as an expert in the area of battered woman’s syndrome.

The plaintiff and the minor child dispute, however, the relevance of Stark’s testimony and whether Stark was qualified to testify on the issue of child custody. Citing to our decision in Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981), they contend that the trial court is required to focus on the parenting skills of the parties and not on their relationship. The plaintiff and the minor child claim that the trial court, in making the custody decision, emphasized the fitness of the parties as spouses instead of their fitness as parents.

The test of relevance is whether the expert’s knowledge or experience is helpful to the fact finder in the determination of an ultimate issue. Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990). The ultimate issue in this case was the determination of the custody of the parties’ minor child. General Statutes § 46b-56 (b) provides that, in making a custody determination, “the court shall be guided by the best interests of the child . . . .” See Gallo v. Gallo, 184 Conn. 36, 43, 440 A.2d 782 (1981) (“court must ultimately be controlled by the welfare of the particular child”); see also McGaffin v. Roberts, 193 Conn. 393, 408, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985); Hall v. Hall, 186 Conn. 118, 121, 439 A.2d 447 (1982); Doe v. Doe, 163 Conn. 340, 343, 345, 307 A.2d 166 (1972); Bailey v. Mars, 138 Conn. 593, 87 A.2d 388 (1952). Parenting skills are only one relevant factor to consider in determining what is in the best interests of the child. Yontef v. Yontef, supra; see Dubicki v. Dubicki, 186 Conn. 709, 717-18, 443 A.2d 1268 (1982) (the trial court did not abuse its discretion in considering the physical abuse of one spouse by the other spouse in making a custody determination).

Stark’s testimony aided in establishing that the defendant displayed battered woman’s syndrome and that the plaintiff had been abusive toward the defendant. Recent studies have indicated that it is detrimental to a minor child to be placed in the custody of a parent who batters the other parent. See L. Walker & G. Edwall, “Determination of Visitation and Custody in Divorce,” Domestic Violence on Trial (Sonkin Ed., 1987) pp. 127-52; L. Crites & D. Coker, “What Therapists See that Judges may Miss,” The Judges Journal 8, 42 (Spring, 1988). Additionally, in 1990, the United States Congress unanimously passed Concurrent Resolution 172 recommending that “for purposes of determining child custody, credible evidence of physical abuse of one’s spouse should create a statutory presumption that it is detrimental to the child to be placed in the custody of the abusive spouse.” H. R. Con. Res. 172, 101st Congress, 2d Sess. (1990). Moreover, in 1990, the National Council of Juvenile and Family Court Judges adopted official recommendations on improving court practice with respect to family violence. In section II, “Recommendations for the Courts,” the Council adopted the following provision: “When the issue of family violence is found to exist in the context of a dissolution of marriage, domestic relations case of any kind, or in a juvenile court case: (a) the violent conduct should be weighed and considered in making custody and visitation orders. . . .” National Council of Juvenile and Family Court Judges, “Family Violence Project, Family Violence: Improving Court Practice,” 41 Juvenile and Family Court Journal 19-20 (1990) .

In light of the above studies, it appears that the presence of battering in the household has, at a minimum, some effect on the parenting skills of both spouses and the child’s response to the parents even after their separation. See National Council of Juvenile and Family Court Judges, Family Violence Project, supra; L. Walker, The Battered Woman Syndrome (1979) p. 59. We therefore conclude that testimony concerning battered woman’s syndrome was relevant to the best interests of the child in determining custody. Accordingly, we conclude that the trial court did not abuse its discretion in determining that Stark’s testimony was relevant to the issue of child custody.

II

The plaintiff and the minor child also claim that the trial court improperly relied upon Stark’s testimony in making its custody determination. After reviewing the trial court’s memorandum, we conclude that the trial court properly considered Stark’s testimony.

It is clear that the trial court considered battered woman’s syndrome, the subject of Stark’s testimony, as a factor in its custody determination. The trial court did not, however, rely solely on Stark’s testimony in awarding custody of the minor child to the defendant. Rather, it considered Stark’s testimony, in addition to other corroborating evidence, for the limited purpose of determining whether the defendant was a battered woman. The trial court allowed Stark to testify as to battered woman’s syndrome and the effects of battering upon the victim and any children involved, and to give his opinion that the defendant manifested battered woman’s syndrome.

Other corroborating evidence presented to the trial court included police reports, which documented a domestic violence call to the parties’ residence, and medical reports, which documented physical injuries sustained by the defendant. The trial court also heard testimony from the plaintiff’s witness, Baez, that the minor child perceived the defendant as an ineffective and inadequate parent. Baez also testified that children who witness abuse of one parent by the other parent may have a poor perception of the abused parent.

The trial court also heard testimony that the plaintiff had frequently humiliated and verbally abused the defendant and had withheld sex and affection from her because he felt that she did not deserve them. Finally, Luise, the family relations counselor who studied the family for six months in order to prepare the family relations report, found that the plaintiff was a “stern, rigid individual who will not tolerate that which does not fully meet his standards or expectations” and that the defendant had “endured emotional and verbal abuse.” The report recommended that custody of the minor child be awarded to the defendant.

In addition to police reports, medical reports and the family relations study, there was ample evidence, upon which Stark commented, that allowed the court to conclude that the defendant had been a victim of battered woman’s syndrome. Stark’s testimony provided the expert knowledge necessary for the trial court to apply the model of battered woman’s syndrome to the facts before it and to conclude that the defendant fit within its parameters. That conclusion was relevant to the court’s custody determination, which hinged on the court’s ability to assess what was in the best interests of the child. We conclude that the trial court properly considered Stark’s testimony in making its custody determination.

Ill

The plaintiff and the minor child next claim that the trial court failed adequately to consider, as required by General Statutes § 46b-56 (b), the minor child’s desire to live with the plaintiff and therefore incorrectly awarded the child’s custody to the defendant. We disagree.

General Statutes § 46b-56 (b) provides that in making any order with respect to custody, “the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if he is of sufficient age and capable of forming an intelligent preference. . . .” Section 46b-56 (b) does not require that the trial court award custody to whomever the child wishes; it requires only that the court take the child’s wishes into consideration. Friedman v. Friedman, 180 Conn. 132, 135-36, 429 A.2d 823 (1980); Joy v. Joy, 178 Conn. 254, 257, 423 A.2d 895 (1979); Cotton v. Cotton, 11 Conn. App. 189, 194, 526 A.2d 547 (1987). The ultimate concern of the trial court is to decide what is in the best interests of the child. Yontef v. Yontef, supra, 282; Gallo v. Gallo, supra, 43. Although the child’s wish is one factor for the court to consider in making that decision, it is certainly not the only one. Accord S. Wizner & M. Berkman, “Being a Lawyer for a Child too Young to be a Client: A Clinical Study,” 68 Neb. L. Rev. 201 (1989) (recommending that a child’s views and preferences should be factored into counsel's recommendation, but should not be determinative).

Contrary to the plaintiff’s claim that the trial court disregarded the child’s wishes, a review of the trial court’s memorandum of decision indicates that the trial court seriously considered the child’s expressed desire to live with the plaintiff. In its memorandum of decision, the court expressed concern that a friend of the family had persuaded the child to make her decision as to where the child wanted to live. The court also noted that the child did not initially know where she wished to live, but rather had made the decision to live with the plaintiff shortly before the trial and perhaps only after speaking with appointed counsel. The evidence permitted the trial court to conclude that the child’s desire to live with her father was not in her best interest. The trial court, therefore, properly considered the statutory criteria of § 46b-56 (b) and did not abuse its discretion by deciding that the child’s desire to live with the plaintiff was not in her best interest.

IV

The plaintiff and the minor child also contend that the trial court improperly viewed the role of counsel for the minor child and exhibited bias against the child’s counsel. They contend that they are entitled to a new trial. We disagree.

During the trial, counsel for the child examined witnesses, made evidentiary objections and otherwise participated in the court proceedings. On the fifth day of trial, as a result of an evidentiary objection by counsel for the minor child, a colloquy took place on the record between the court and counsel relating to the role of counsel for the minor child.

In the course of that exchange the court admonished the child’s attorney for making evidentiary objections that the court viewed as favoring the plaintiff’s position. Specifically, the court discouraged the child’s attorney from raising objections and suggested that the child’s attorney should wait for someone else to raise such objections. The court accused the counsel for the child of improperly “prejudging” the case. The court also admonished counsel for “making up her mind before hearing all the evidence” and suggested that she should properly remain neutral throughout the trial and, after hearing all the evidence, make a recommendation to the court at the end of the proceedings. Finally, the court indicated that counsel’s actions would influence the court and diminish the weight given by the court to counsel’s position.

It is clear that the trial court and counsel for the minor child disagreed as to the proper role of the attorney for a minor child in a custody proceeding. General Statutes § 46b-54 (a) allows the court to appoint an attorney to represent a minor child during a dissolution proceeding if “the court deems it to be in the best interests of the child.” Additionally, § 46b-54 (c) provides that “[cjounsel for the child . . . shall be heard on all matters pertaining to the interests of any child, including the custody . . . so long as the court deems such representation to be in the best interests of the child.” “The purpose of appointing counsel for a minor child in a dissolution action is to ensure independent representation of the child’s interest and such representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation.” Schaffer v. Schaffer, 187 Conn. 224, 224 n.1, 445 A.2d 589 (1982). The legislature has not delineated, nor has this court yet been presented with the opportunity to delineate, the obligations and limitations of the role of counsel for a minor child. We recognize that representing a child creates practical problems for an attorney and that this important issue, at some point, needs to be addressed. See R. Berdon, “A Child’s Right to Counsel in a Contested Custody Proceeding Resulting from a Termination of the Marriage,” 50 Conn. B.J. 150 (1976). Because counsel has failed to demonstrate any prejudice resulting from her difference of opinion with the trial court, however, this case is not an appropriate vehicle for a discussion of the role of counsel for a minor child. Harkins v. Driscoll, 165 Conn. 407, 409, 334 A.2d 901 (1973) (courts may not be used as a vehicle to obtain judicial opinions upon points of law if no actual and existing controversy exists).

Although counsel claims that the trial court improperly viewed her role as counsel for the minor child, there is nothing in the record that indicates that the trial court interfered with or undermined her ability to represent her client. In fact, counsel for the minor child concedes an inability to point to anything that she was precluded from doing during the proceedings. To the contrary, counsel for the minor child led the objections to the defendant’s expert, Stark, and the trial court frequently sustained her objections. The record further reflects that she zealously argued her case, fully cross-examined witnesses and fully participated in oral and written argument. The trial court’s view of counsel’s role, therefore, did not impair her ability to represent her client in an appropriate manner.

The plaintiff and the minor child further contend that the trial court exhibited bias in stating that the actions of the child’s counsel would influence how the court viewed counsel’s position. This issue was raised for the first time on appeal. “It is a well settled general rule that courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court via a motion for disqualification or a motion for mistrial.” Gillis v. Gillis, 214 Conn. 336, 343, 572 A.2d 323 (1990); Practice Book § 4185. “ ‘ “We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal.” ’ ” Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985); Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967). This court has also recognized, however, that a claim of judicial bias “ ‘strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary. . . .’ ” Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). “ ‘No more elementary statement concerning the judiciary can be made than that the conduct of the trial judge must be characterized by the highest degree of impartiality. If he departs from this standard, he casts serious reflection upon the system of which he is a part.’ ” Id., 168-69; State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975); see State v. Conroy, 194 Conn. 623, 633, 484 A.2d 448 (1984). We review this claim, therefore, only under a plain error standard of review.

Although the trial court’s remark is of questionable propriety, the record is devoid of any manifestation of actual prejudice or bias on the part of the trial court. A party is entitled to a new trial only upon a showing that prejudice resulted from the trial court’s actions. State v. Gordon, 197 Conn. 413, 425, 504 A.2d 1020 (1985); State v. Echols, supra. “In a jury case, such prejudice may be presumed absent mitigating circumstances.” Fair v. Warden, 211 Conn. 398, 414, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 108 L. Ed. 2d 514 (1989). In a bench trial, however, “the court sits as the trier of fact, and thus a presumption of prejudice is not warranted.” Id. Counsel was able to perform her role as counsel for the minor child as she saw fit. The issues raised in this appeal, including the claimed inability of Stark to testify, interference with the role of counsel for the minor child and the court’s failure to consider the minor child’s wishes in connection with the issue of custody, were all claims raised by the minor child’s attorney. In each instance, the trial court considered her claims, and not once did it demonstrate any prejudice toward her position because of prejudice toward her or disagreement with the role she had assumed. Thus, she is unable to demonstrate that she was harmed by the court’s actions. State v. Mazzetta, 21 Conn. App. 431, 442, 574 A.2d 806, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990). Counsel has not, therefore, shown such bias by the trial court as would warrant a finding by this court of plain error.

Y

Last, the plaintiff claims that the trial court failed to consider all the statutory criteria set forth in General Statutes § 46b-81 and therefore improperly distributed the marital property. We disagree.

The principal financial orders are as follows: (1) the plaintiff shall transfer title of the marital home to the defendant and the defendant shall hold the plaintiff harmless on the mortgage; (2) by July 1, 1996, the defendant will either sell or refinance the marital property so as to remove the plaintiff’s possible liability for the mortgage; (3) the plaintiff shall pay the defendant alimony in the amount of one dollar a year until the defendant remarries, dies or cohabitates; (4) both parties shall retain their own IRAs; (5) both parties shall retain their own automobiles; (6) both parties shall be responsible for their own attorney’s fees and shall be jointly responsible for the fees of counsel for the minor child; (7) the parties’ stock shall be divided equally between them; (8) the Sikorsky savings plan shall be divided as follows: (a) within thirty days of the date of judgment $8500 in taxable funds and $13,000 in nontaxable funds shall be delivered to the defendant; and (b) the defendant shall be responsible for the taxes on the $8500; (9) if there is a tax refund on the 1990 tax return, it shall be shared equally by the parties; (10) the defendant will have 60 percent interest in the amount of tax deferred savings in the Sikorsky account as of March 31, 1991; (11) the plaintiff shall keep the employee stock option plan funds, certain stock, any assets or income from his father’s estate and all interest in additional accrued savings after April 1, 1991, and his pension.

The plaintiff contends that the trial court abused its discretion in issuing the financial orders because the court allegedly failed adequately to consider the “contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates” as required by General Statutes § 46b-81 (c). The plaintiff argues that since he was the primary financial contributor to the marriage, the trial court must not have sufficiently considered the contribution of each party in the acquisition, preservation or appreciation in value of their respective estates when it distributed the property in approximately equal shares.

In reviewing the trial court’s decision, we are mindful that the trial court is accorded wide discretion in a dissolution action in distributing the marital property. Rostain v. Rostain, 213 Conn. 686, 689, 569 A.2d 1126 (1990). “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.” Id., 693. “In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” Blake v. Blake, 207 Conn. 217, 229, 541 A.2d 1201 (1988).

Contrary to the plaintiff’s claim, the trial court carefully considered the financial contribution of each party as to each marital asset. After reviewing each party’s financial contribution, the trial court concluded that “the financial part of the marriage has been totally the responsibility of the plaintiff.” In dividing up property, however, the court must take many factors into account. Yontef v. Yontef, supra, 285-86. In addition to the financial contributions of each party, the court also properly considered the causes of the dissolution, the age, health, station, occupation, amount and sources of income, vocational skills, employability, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. Moreover, the court “legitimately consider[ed] the need of the custodial parent to provide a stable and familiar residence” for the minor child. Id., 285.

The plaintiff also claims that the trial court abused its discretion in failing to consider the disparity in legal fees and the potential appreciation in value of the marital home. “[T]he trial court must consider all the statutory criteria in determining how to divide the parties’ property in a dissolution action.” Savage v. Savage, 25 Conn. App. 693, 701, 596 A.2d 23 (1991); Leo v. Leo, supra, 5. “A trial court, however, need not give each factor equal weight ... or recite the statutory criteria that it considered in making its decision or make express findings as to each statutory factor.” (Citations omitted). Savage v. Savage, supra. Accordingly, the trial court did not abuse its discretion in failing to provide a detailed discussion of the parties’ legal fees and the potential appreciation in value of the marital home. After our review of the trial court’s memorandum of decision, we are satisfied that the trial court reasonably and equitably divided the marital assets on the basis of all the requisite considerations.

The judgment is affirmed.

In this opinion the other justices concurred.

       Because the minor child’s claims on appeal are also raised by the plaintiff, we need not decide whether the minor child is a party to this action and capable of individually appealing.

       General Statutes § 46b-3 provides in pertinent part: “For the purposes of any investigation or pretrial conference the judge presiding at any family relations session may employ the services of any . . . family counselor.”
      General Statutes § 46b-6 provides in pertinent part: “In any pending family relations matter the court or any judge may cause an investigation to be made with respect to any circumstances of the matter which may be helpful or material or relevant to a proper disposition of the case.” These statutes allow the court, in its discretion, to obtain a disinterested assessment of the circumstances of a case. Ridgeway v. Ridgeway, 180 Conn. 533, 542 n.6, 429 A.2d 801 (1980); Volante v. Volante, 180 Conn. 528, 532, 429 A.2d 964 (1980).

       Thirty-eight states and the District of Columbia have enacted legislation that requires the court to consider battering in intrafamily custody cases. See, e.g., Cal. Civ. Code §§ 4608 (b) and 4601.5 (Deering 1992); Mass. Gen. Laws c. 208, § 31 (West 1992); N.H. Rev. Stat. Ann. § 458:17 II (c) (1991) ; N.J. Stat. Ann. § 9:2-4c (West 1990); Wash. Rev. Code § 26.09.191 (2) (c); Wis. Stat. Ann. § 767.24 (2) (b) (c) (West 1989-90).

       We need not decide whether Stark, as an expert in battered woman’s syndrome, was qualified to render an expert opinion as to custody. We note that the trial court specifically ruled that it would not allow him to give his opinion as to custody. The trial court’s reference to his testimony and the relevance thereof were strictly in connection with his expertise on the subject of battered woman’s syndrome.

       Moreover, the trial court heard both Baez and Stark testify that a child that witnesses the abuse of one parent by the other, may have a less than desirable perception of the abused parent.

       Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interest of justice notice plain error not brought to the attention of the trial court.”

       General Statutes § 46b-81 (c) provides: “In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witness, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       The trial court found that the equity in the marital home at the time of trial was approximately $33,000. The court valued'the house at $158,000 and noted that there were two liens on the property: a mortgage of $70,000 and a line of credit against which only $30,000 had been drawn upon prior to the institution of dissolution proceedings. The trial court found that after the institution of dissolution proceedings the plaintiff had taken an additional $25,000 against the line of credit for his own use. Therefore, the trial court concluded that the plaintiff had already “taken a substantial share of the equity.”

       The plaintiff contends that the trial court over emphasized fault in making its financial awards and essentially punished the plaintiff. We disagree. The causes of the dissolution of a marriage are a proper consideration in making a property assignment. General Statutes § 46b-81 (c); Dubicki v. Dubicki, 186 Conn. 709, 716, 443 A.2d 1268 (1982). There is nothing in the record to support the plaintiffs claim that the trial court acted to punish the plaintiff, rather than to divide equitably the assets of the parties on the basis of all the relevant facts and circumstances.

       Additionally, the plaintiff contends that the trial court abused its discretion in concluding that the plaintiffs withdrawal of equity was used solely for his own benefit, and not for the payment of debts accumulated during the marriage and home improvements. See footnote 8. “Where there is conflicting evidence ... we do not retry the facts or pass upon the credibility of the witnesses.” Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 14, 420 A.2d 1142 (1979). Therefore, we cannot conclude that the trial court incorrectly found that the plaintiff's withdrawal of equity was used for his own benefit.