text:
    Louise Clark, Conservatrix (Estate of Wilbur Clark) v. Commissioner of Income Maintenance
    (13468)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.
    Argued November 1
    decision released December 20, 1988

      Hugh Barber, assistant attorney general, with whom were Martin Rosenfeld, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellant (defendant).

      Timothy J. Johnston, with whom was Patricia A. Thompson, for the appellee (plaintiff).

      Patty Jenkins Pittman filed a brief for the Connecticut Women’s Educational and Legal Fund, Inc., as amicus curiae.

      George B. Bickford filed a brief for the Connecticut Probate Assembly as amicus curiae.
   Peters, C. J.

The dispositive issue in this appeal is whether income “available” to an institutionalized incompetent for medicaid eligibility purposes includes an amount a Probate Court has ordered the incompetent to pay his at-home spouse. The plaintiff, Louise Clark, conservatrix for her husband Wilbur Clark, brought an adminstrative appeal pursuant to General Statutes § 17-2a claiming that the defendant, the commissioner of income maintenance, had awarded Wilbur Clark insufficient medicaid support by not excluding from his “available” income the amount that the Probate Court had ordered him to pay her in spousal support. The Fair Hearing Officer (FHO) upheld the defendant’s ruling. The trial court, however, sustained the plaintiff’s appeal holding that the defendant should have excluded the amount of the spousal support award from Wilbur Clark’s “available” income. The defendant appealed to the Appellate Court and we transferred the case to ourselves pursuant to Practice Book § 4023. We find error.

The parties do not dispute the relevant facts. Wilbur Clark is an elderly, incompetent, nursing home resident for whom his wife, the plaintiff, serves as conservatrix. On May 29,1984, the plaintiff, as spouse, applied to the Probate Court for a $340 per month allowance from her husband’s estate. The plaintiff, as conservatrix, did not object to her own application and the Probate Court, on June 22, 1984, granted her a $460 per month allowance from the estate principal, an amount $120 more per month than she had requested.

On October 4, 1984, the plaintiff, on her husband’s behalf, applied to the defendant for Title XIX medicaid assistance, which the defendant granted effective retroactively to July 1, 1984. In determining the applicant’s eligibility, the defendant found that he received $629.60 per month from social security and $698 per month from a Teamster’s pension, for a monthly income of $1327.60, a figure that neither party disputes. See 42 U.S.C. § 1382a (a) (2) (B); 20 C.F.R. § 416.1121 (a). The defendant wrote to the plaintiff several times asking for her own asset information to determine whether any of Wilbur Clark’s income should be diverted to her to meet her maintenance needs. See 42 C.F.R. § 435.832 (c). The plaintiff never responded, believing she had no such obligation as she had not applied for medicaid herself. The defendant therefore awarded benefits to Wilbur Clark based on $1327.60 per month of “available” income.

The plaintiff disputed the defendant’s award to the incompetent and requested a fair hearing pursuant to General Statutes § 17-2a. The FHO upheld the defendant’s award, also finding $1327.60 per month “available” to Wilbur Clark and ruling that the defendant need not consider the Probate Court award in determining his “available” income.

The trial court then sustained the plaintiff’s appeal from the FHO’s decision. It held that no state statute or regulation mandated that the defendant, in calculating an applicant’s “available” income, must disregard court orders requiring the applicant to pay sums to a third party and that the defendant had, therefore, acted illegally in calculating Wilbur Clark’s “available” income. The court remanded the case to the defendant to redetermine the applicant’s eligibility. The defendant appeals from the trial court’s judgment.

The federal medicaid program, established by Congress in 1965, “provid[es] federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons.” Harris v. McRae, 448 U.S. 297, 301, 100 S. Ct. 2671, 65 L. Ed. 2d 784, reh. denied, 448 U.S. 917, 101 S. Ct. 39, 65 L. Ed. 2d 1180 (1980); 42 U.S.C. § 1396 et seq. Although states participate voluntarily, a state electing to participate must develop a plan, approved by the secretary of health and human services, containing “reasonable standards . . . for determining eligibility for and the extent of medical assistance . . . . ” 42 U.S.C. § 1396a (a) (17). All participating states must provide coverage to “the categorically needy”: dependent children, the aged, the blind and the disabled who qualify for welfare assistance under the Supplemental Security Income (SSI) program; 42 U.S.C. §§ 1381 through 1383; or, upon the election of the state, under a more restrictive standard in place before 1972. 42 U.S.C. § 1396a (f). States are also afforded the option of covering the “optionally categorically needy”: individuals who are financially ineligible for SSI, but eligible for, or a recipient of, optional state supplementation to SSI. 42 U.S.C. § 1396a (a) (10) (A). Finally, states may also, at their option, provide assistance to the “medically needy”: those whose resources are sufficient to cover their ordinary living expenses, but not their medical care. 42 U.S.C. § 1396a (a) (10) (C); 42 C.F.R. §§ 435.300 through 435.340.

Connecticut has elected to cover the “optionally categorically needy” and the “medically needy,” as well as the “categorically needy.” The plaintiff has applied for benefits on her husband’s behalf under the “medically needy” option. Applicants qualify for assistance as “medically needy” if they incur medical expenses to an extent that reduces their income to the established eligibility level. These persons must first “spenddown” their “available” income on their medical care expenses to the eligibility level, with the medicaid program covering the unpaid balance. Thus, the lower the amount of income an applicant is deemed to have “available,” the less he must “spenddown” to qualify for assistance. 42 C.F.R. § 435.301; see Atkins v. Rivera, 477 U.S. 154, 158, 106 S. Ct. 2456, 91 L. Ed. 2d 131 (1986).

The legislature, by General Statutes § 17-134a, has authorized the commissioner of income maintenance to administer Connecticut’s medicaid program. Our statutes further provide that “[a]ll of the provisions of this chapter are extended to the medical assistance program except such provisions as are inconsistent with federal law and regulations governing Title XIX of the Social Security Amendments of 1965 and this part.” General Statutes § 17-134e. “Thus, the legislature recognized the primacy of the applicable federal provisions and, this court must be guided by those provisions. Stated in another way, the federal statutes and regulations set a limit Upon the authority of the commissioner as well as furnishing a guide to his administration of the program.” Morgan v. White, 168 Conn. 336, 343-44, 362 A.2d 505 (1975).

In determining an individual’s eligibility for medicaid benefits, the commissioner may take “into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary [of health and human services], available to the applicant or recipient . . . . ” (Emphasis added.) 42 U.S.C. § 1396a (a) (17) (B). The plaintiff contends that the Probate Court order for her to pay herself $460 of Wilbur Clark’s monthly income compels the defendant to exclude that amount from Wilbur Clark’s total income in determining his medicaid eligibility. She suggests that such an exclusion is required in order to give proper legal effect to a valid Probate Court order.

In our view, the plaintiff misconstrues the issue in this case. The Probate Court undoubtedly has the authority to enter an enforceable spousal support order. General Statutes § 45-75 (b). This case, however, concerns whether the defendant must consider that court order in determining an applicant’s eligibility for the federally funded medicaid program. We hold that he need not, indeed that he cannot.

“Congress explicitly delegated to the Secretary broad authority to promulgate regulations defining eligibility requirements for Medicaid.” Schweiker v. Gray Panthers, 453 U.S. 35, 43, 101 S. Ct. 2633, 69 L. Ed. 2d 460 (1981). “In view of this explicit delegation of substantive authority, the Secretary’s definition of the term ‘available’ is ‘entitled to more than mere deference or weight.’ . . . Rather, the Secretary’s definition is entitled to ‘legislative effect’ because, ‘[i]n a situation of this kind, Congress entrusts to the Secretary, rather than to the courts, the primary responsibility for interpreting the statutory term.’ ” Id., 44, quoting Batterton v. Francis, 432 U.S. 416, 425-26, 97 S. Ct. 2399, 53 L. Ed. 2d 448 (1977); see also Herweg v. Ray, 455 U.S. 265, 274-75, 102 S. Ct. 1059, 71 L. Ed. 2d 137 (1982); Marcus’ Appeal from Probate, 199 Conn. 524, 532 n.3, 509 A.2d 1 (1986).

The Secretary’s regulations require that an “agency must reduce its payment to an institution, for services provided to an individual ... by the amount that remains after deducting the amounts specified in paragraph (c) of this section, from the individual’s income.” (Emphasis added.) 42 C.F.R. § 435.832 (a). Paragraph (c) specifically lists only four amounts an agency may deduct from a “medically needy” applicant’s total income: (1) a personal needs allowance; (2) an at-home spousal allowance; (3) an at-home family allowance; and (4) medical or remedial expenses not paid by third parties. 42 C.F.R. § 435.832 (c); see Mattingly by Mattingly v. Heckler, 784 F.2d 258, 266 (7th Cir. 1986); Florence Nightingale Nursing Home v. Perales, 782 F.2d 26, 29 (2d Cir. 1986), cert. denied, 479 U.S. 815, 107 S. Ct. 68, 93 L. Ed. 2d 26 (1986). The regulations do not mention court ordered spousal support nor any other diversions to meet either an applicant’s legal or moral obligations.

The plaintiff submits that although the court ordered award does not fall within any of the § 435.832 (c) exclusions, the amount is not “available” because the order obligates the applicant to pay it to a third party. The defendant argues, to the contrary, that “available” income equals “total income,” regardless of an applicant’s obligations to pay sums out, and that any protected amounts are then diverted pursuant to § 435.832 (c). We agree with the defendant. The principle of availability “has served primarily to prevent the States from conjuring fictional sources of income and resources by imputing financial support from persons who have no obligation to furnish it or by overvaluing assets in a manner that attributes nonexistent resources to recipients.” Heckler v. Turner, 470 U.S. 184, 200, 105 S. Ct. 1138, 84 L. Ed. 2d 138 (1985) (holding that mandatory tax withholdings are “available” for social security purposes); see also Wilczynski v. Harder, 323 F. Sup. 509, 517 (D. Conn. 1971) (the cash value, not the face value, of an insurance policy is “available” for SSI). Thus, just as under SSI an agency includes, as “available,” amounts garnished from an applicant’s wages or withheld for other obligations; see 20 C.F.R. § 416.1123 (b) (2); so the concept of “available” income excludes imputed income that an applicant has not actually received, but does not require a state to exclude the amount of an applicant’s other obligations. Under SSI the individual’s needs come first, followed by those of his dependents and creditors. See 20 C.F.R. § 404.2040. Because the secretary’s regulations, to which courts must accord “ ‘legislative effect’ ”; Schweiker v. Gray Panthers, supra, 44; already provide for an agency determined spousal support exclusion, but do not provide for court ordered exclusions, the defendant correctly calculated Wilbur Clark’s “available” monthly income as $1327.60, and the trial court erred in directing the defendant to exclude $460 per month from his “available” income.

The Georgia Court of Appeals, in Johnson v. Flanagan, 179 Ga. App. 708, 347 S.E.2d 643, cert. granted, 354 S.E.2d 156 (1986), reached a similar conclusion with regard to court awarded alimony. In that case a court had ordered a medicaid applicant, whose sole income was a social security check, to pay alimony to his ex-wife. In determining his “available” income, the state medicaid agency did not deduct his alimony obligation from his total income. On appeal the court upheld the agency’s construction of the statute, holding that it could only deduct the items listed in the federal regulations, here 42 C.F.R. § 435.725 (c). Id., 710.

The policy underlying today’s decision reflects the legislative concern that the medicaid program would be at fiscal risk if applicants were permitted to divert income in ways not sanctioned by law. Our recent Title XIX cases have recognized the importance of this policy; Harrison v. Commissioner, 204 Conn. 672, 529 A.2d 188 (1987) (assets from a transfer made in order to qualify for medicaid are “available” to the transferor); Marcus’ Appeal from Probate, supra (unauthorized gifts by a conservator of an estate are “available” to the ward); and the present case illustrates the reasonableness of the legislative restrictions on “available” income. Federal regulations provide for an exclusion from “available” income for at-home spousal support “based on a reasonable assessment of need but must not exceed the highest of” three standards. (Emphasis added.) 42 C.F.R. § 435.832 (c) (2). The defendant represents, and the plaintiff has not disputed, that Connecticut has adopted the most generous of the three standards. 42 C.F.R. § 435.832 (c) (2) (iii). That exclusion is, nonetheless, limited because “Congress chose to direct those limited funds to persons who were most impoverished . . . . ” Schweiker v. Hogan, 457 U.S. 569, 590, 102 S. Ct. 2597, 73 L. Ed. 2d 227 (1982). Because the plaintiff elected not to provide relevant income information, the defendant was unable to determine the extent, as limited by federal law, to which he could exclude an amount for spousal support from Wilbur Clark’s “available” income.

“We are not without sympathy for those with minimal resources for medical care. But our ‘sympathy is an insufficient basis for approving a recovery’ based on a theory inconsistent with law.” Schweiker v. Gray Panthers, supra, 48-49, quoting Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268, 284, 101 S. Ct. 509, 66 L. Ed. 2d 446 (1980). A reviewing court “may not ignore federal regulations simply because it interprets § 1902 (a) (17) [of the Social Security Act] in a manner it considers preferable to the Secretary’s interpretation.” Herweg v. Ray, supra, 277. Our appellate review in this case is limited to determining whether the defendant correctly applied the regulations promulgated by the secretary. We hold that the defendant accurately employed the governing federal standards in computing the applicant’s “available” income.

There is error, the judgment is vacated and the case is remanded with direction to dismiss the plaintiff’s appeal.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 17-2a. fair hearings by commissioner, application. An aggrieved person authorized by law to request a fair hearing on a decision of the commissioner of income maintenance, or the conservator of any such person on his behalf, may make application for such hearing in writing over his signature to the commissioner and shall state in such application in simple language the reasons why he claims to be aggrieved. Such application shall be mailed to the commissioner within sixty days after the rendition of such decision. The commissioner shall thereupon hold a fair hearing within thirty days from receipt thereof and shall, at least ten days prior to the date of such hearing, mail a notice, giving the time and place thereof, to such aggrieved person. A reasonable period of continuance may be granted for good cause. No hearing shall be held after the decease of the aggrieved person. The aggrieved person shall appear personally at the hearing and may be represented by an attorney or other authorized representative. A stenographic or mechanical record shall be made of each hearing, but need not be transcribed except (1) in the event of an appeal from the decision of the hearing officer or (2) if a copy is requested by the aggrieved person, in either of which cases it shall be furnished by the commissioner of income maintenance without charge. The commissioner of income maintenance and any person authorized by him to conduct any hearing under the provisions of this section shall have power to administer oaths and take testimony under oath relative to the matter of the hearing and may subpoena witnesses and require the production of records, papers and documents pertinent to such hearing. No witness under subpoena authorized to be issued by the provisions of this section shall be excused from testifying or from producing records, papers or documents on the ground that such testimony or the production of such records or other documentary evidence would tend to incriminate him, but such evidence or the records or papers so produced shall not'be used in any criminal proceeding against him. If any person disobeys such process or, having appeared in obedience thereto, refuses to answer any pertinent question put to him by the commissioner or his authorized agent or to produce any records and papers pursuant thereto, the commissioner or his agent may apply to the superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the person resides, or to any judge of said court if the same is not in session, setting forth such disobedience to process or refusal to answer, and said court or such judge shall cite such person to appear before said court or such judge to answer such question or to produce such records and papers and, upon his refusal to do so, shall commit such person to a community correctional center until he testifies, but not for a longer period than sixty days. Notwithstanding the serving of the term of such commitment by any person, the commissioner or his agent may proceed with such inquiry and examination as if the witness had not previously been called upon to testify. Officers who serve subpoenas issued by the commissioner or under his authority and witnesses attending hearings conducted by him hereunder shall receive like fees and compensation as officers and witnesses in the courts of this state to be paid on vouchers of the commissioner on order of the comptroller.”

         The FHO also concluded that the defendant had properly solicited income and resource information from the plaintiff to determine her eligibility for a spousal support diversion. He went on to rule that the defendant should allow the plaintiff a reasonable time to provide the information. The plaintiff refused.

       Title 42 of the United States Code, § 1396a (a) (17) provides in pertinent part: “A state plan for medical assistance must . . . (17) include reasonable standards ... for determining eligibility for and the extent of medical assistance under the plan which (A) are consistent with the objectives of this subchapter, (B) provide for taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient and ... as would not be disregarded (or set aside for future needs) in determining his eligibility for such aid, assistance, or benefits . . . . ”

       Title 42 of the United States Code, § 1396a (f) provides: “effective DATE OF STATE PLAN AS DETERMINATIVE OF DUTY OF STATE TO PROVIDE MEDICAL ASSISTANCE TO AGED, BLIND, OR DISABLED INDIVIDUALS. Notwithstanding any other provision of this subchapter, except as provided in subsection (e) of this section, no State not eligible to participate in the State plan program established under subchapter XVI of this chapter shall be required to provide medical assistance to any aged, blind, or disabled individual (within the meaning of subchapter XVI of this chapter) for any month unless such State would be (or would have been) required to provide medical assistance to such individual for such month had its plan for medical assistance approved under this subchapter and in effect on January 1,1972, been in effect in such month, except that for this purpose any such individual shall be deemed eligible for medical assistance under such State plan if (in addition to meeting such other requirements as are or may be imposed under the State plan) the income of any such individual as determined in accordance with section 1396b (f) of this title (after deducting any supplemental security income payment and State supplementary payment made with respect to such individual, and incurred expenses for medical care as recognized under State law) is not in excess of the standard for medical assistance established under the State plan as in effect on January 1,1972. In States which provide medical assistance to individuals pursuant to clause (10) (C) of subsection (a) of this section, an individual who is eligible for medical assistance by reason of the requirements of this section concerning the deduction of incurred medical expenses from income shall be considered an individual eligible for medical assistance under clause (10) (A) of that subsection if that individual is, or is eligible to be (1) an individual with respect to whom there is payable a State supplementary payment on the basis of which similarly situated individuals are eligible to receive medical assistance equal in amount, duration, and scope to that provided to individuals eligible under clause (10) (A), or (2) an eligible individual or eligible spouse, as defined in subchapter XVI of this chapter, with respect to whom supplemental security income benefits are payable; otherwise that individual shall be considered to be an individual eligible for medical assistance under clause (10) (C) of that subsection. In States which do not provide medical assistance to indviduals pursuant to clause (10) (C) of that subsection, an individual who is eligible for medical assistance by reason of the requirements of this section concerning the deduction of incurred medical expenses from income shall be considered an individual eligible for medical assistance under clause (10) (A) of that subsection.”
      Congress enacted this section, called the “209 (b) option,” in order to encourage states to continue participating in the program. The option allows the states to retain their eligibility standards as of January 1, 1972, but disallows them from setting lower standards. Connecticut has elected the “209 (b) option.” See Gnutti v. Heintz, 206 Conn. 628, 633, 539 A.2d 118 (1988).

       On the “spenddown” mechanism, see Schweiker v. Gray Panthers, 453 U.S. 34, 39 n.5, 101 S. Ct. 2633, 69 L. Ed. 2d 460 (1981); 2 H. McCormick, Medicare and Medicaid Claims and Procedures (2d Ed. 1986) § 980, p. 454 n.l.

       General Statutes § 17-134a provides in pertinent part: “The commissioner of income maintenance is authorized to take advantage of the medical assistance programs provided in Title XIX, entitled ‘Grants to States for Medical Assistance Programs,’ contained in the Social Security Amendments of 1965 and may administer the same in accordance with the requirements provided therein . . . .”

       General Statutes § 45-75 (b) provides: “Any conservator of the estate of a married person may apply such portion of the property of the ward to the support, maintenance and medical treatment of the ward’s spouse which the court of probate, upon hearing after notice, decides to be proper under the circumstances of the case.”

       We note that with the enactment of the Medicare Catastrophic Coverage Act of 1988, Pub. L. No. 100-360, H.R. 2470, § 303 (a), § 1924 (d) (5), effective October 1,1989, in the event “a court has entered an order against an institutionalized spouse for monthly income for the support of the community spouse, the community spouse monthly income allowance for the spouse shall not be less than the amount of the monthly income so ordered.” This change in the calculation of spousal benefits does not affect this case.

       Title 42 of the Code of Federal Regulations, § 435.832 (c) provides: “The agency must deduct the following amounts, in the following order, from the individual’s total income including amounts disregarded in determining eligibility:
      (1) A personal needs allowance that is reasonable in amount for clothing and other personal needs of the individual while in the institution. This protected personal needs allowance must be at least—
      (i) $25 a month for an aged, blind, or disabled individual, including a child applying for Medicaid on the basis of blindness or disability;

        (ii) $50 a month for an institutionalized couple if both spouses are aged, blind, or disabled and their income is considered available to each other in determining eligibility; and
      (iii) For other individuals, a reasonable amount set by the agency, based on a reasonable difference in their personal needs from those of the aged, blind, and disabled.
      (2) For an individual with only a spouse at home, an additional amount for the maintenance needs of the spouse. This amount must be based on a reasonable assessment of need but must not exceed the highest of—
      (i) The amount of the income standard used to determine eligibility for SSI for an individual living in his own home;
      (ii) The amount of the highest income standard, in the appropriate category of age, blindness, or disability, used to determine eligibility for an optional State supplement for an individual in his own home, if the agency provides Medicaid to optional State supplement recipients under § 435.230; or
      (iii) The amount of the highest medically needy income standards for one person established under § 435.814.
      (3) For an individual with a family at home, an additional amount for the maintenance needs of the family. This amount must—
      (i) Be based on a reasonable assessment of their financial need;
      (ii) Be adjusted for the number of family members living in the home; and
      (iii) Not exceed the highest of the following need standards for a family of the same size:
      (A) The standard used to determine eligibility under the State’s approved AFDC plan.
      (B) The standards used to determine eligibility under the State’s Medicaid plan, as provided for in § 435.814.
      (4) Amounts for incurred expenses for medical or remedial care that are not subject to payment by a third party, including—
      (i) Medicare and other health insurance premiums, deductibles, or coinsurance charges; and
      (ii) Necessary medical or remedial care recognized under State law but not covered under the State’s Medicaid plan, subject to reasonable limits the agency may establish on amounts of these expenses.
      (d) In determining the amount of the individual’s income to be used to reduce the agency’s payment to the institution, the agency may, for single individuals, deduct an amount (in addition to the personal needs allowance) for maintenance of the individual’s home if—
      (1) The amount is deducted for not more than a 6-month period; and
      (2) A physician has certified that the individual is likely to return to his home within that period.”

       The Mattingly case concerned 42 C.F.R. § 435.733, and the Perales case 42 C.F.R. §§ 435.725 and 435.832. The three sections are nearly identical.
      Title 42 of the Code of Federal Regulations, § 435.733 provides: “POST-ELIGIBILITY TREATMENT OF INCOME AND RESOURCES OF INSTITUTIONALIZED individuals: application of patient income to the cost of care.
      (a) The agency must reduce its payment to an institution, for services provided to an individual specified in paragraph (b) of this section, by the amount that remains after deducting the amounts specified in paragraph (c) of this section, from the individual’s income.
      (b) This section applies to the following individuals in medical institutions and intermediate care facilities:
      (1) Individuals receiving cash assistance under AFDC who are eligible for Medicaid under § 435.110 and individuals eligible under § 435.121.
      (2) Individuals who would be eligible for AFDC, SSI, or an optional State supplement except for their institutional status and who are eligible for Medicaid under § 435.211.
      (3) Aged, blind and disabled individuals who are eligible for Medicaid, under § 435.231, under a higher income standard than the standard used in determining eligibility for SSI or optional State supplements.
      (c) The agency must deduct the following amounts, in the following order, from the individual’s total income including amounts disregarded in determining eligibility:
      (1) A personal needs allowance that is reasonable in amount for clothing and other personal needs of the individual while in the institution. This protected personal needs allowance must be at least—
      (1) $25 a month for an aged, blind, or disabled individual, including a child applying for Medicaid on the basis of blindness or disability;
      (ii) $50 a month for an institutionalized couple if both spouses are aged, blind, or disabled and their income is considered available to each other in determining eligibility; and
      (iii) For other individuals, a reasonable amount set by the agency, based on a reasonable difference in their personal needs from those of the aged, blind, and disabled.
      (2) For an individual with only a spouse at home, an additional amount for the maintenance needs of the spouse. This amount must be based on a reasonable assessment of need but must not exceed the higher of—
      (i) The more restrictive income standard established under § 435.121; or
      (ii) The medically needy standard for an individual;
      (3) For an individual with a family at home, an additional amount for the maintenance needs of the family. This amount must—
      (i) Be based on a reasonable assessment of their financial need;
      (ii) Be adjusted for the number of family members living in the home; and
      (iii) Not exceed the higher of the need standard for a family of the same size used to determine eligibility under the State’s AFDC plan or the medieally needy income standard established under subpart I of this part for a family of the same size.
      (4) Amounts for incurred expenses for medical or remedial care that are not subject to payment by a third party, including—
      (i) Medicare and other health insurance premiums, deductibles, or coinsurance charges; and
      (ii) Necessary medical or remedial care recognized under State law but not covered under the State’s Medicaid plan, subject to reasonable limits the agency may establish on amounts of these expenses.
      (d) In determining the amount of the individual’s income to be used to reduce the agency’s payment to the institution, the agency may, for single individuals, deduct an amount (in addition to the personal needs allowance) for maintenance of the individual’s home if—
      (1) The amount is deducted for not more than a 6-month period; and
      (2) A physician has certified that the individual is likely to return to his home within that period.”
      Title 42 of the Code of Federal Regulations, § 435.725 provides: “POST-ELIGIBILITY TREATMENT OF INCOME AND RESOURCES OF INSTITUTIONALIZED INDIVIDUALS: APPLICATION OF PATIENT INCOME TO THE COST OF CARE.
      (a) The agency must reduce its payment to an institution, for services provided to an individual specified in paragraph (b) of this section, by the amount that remains after deducting the amounts specified in paragraph (c) of this section, from the individual’s income.
      (b) This section applies to the following individuals in medical institutions and intermediate care facilities:
      (1) Individuals receiving cash assistance under SSI or AFDC who are eligible for Medicaid under § 435.110 or § 435.120.
      (2) Individuals who would be eligible for AFDC, SSI, or an optional State supplement except for their institutional status and who are elgible for Medicaid under § 435.211.
      (3) Aged, blind, and disabled individuals who are eligible for Medicaid, under § 435.231, under a higher income standard than the standard used in determining eligibility for SSI or optional State supplements.
      (c) In reducing its payment to the institution, the agency must deduct the following amounts in the following order, from the individual’s total income including amounts disregarded in determining eligibility:
      (1) A personal needs allowance that is reasonable in amount for clothing and other personal needs of the individual while in the institution. This protected personal needs allowance must be at least—
      (i) $25 a month for an aged, blind, or disabled individual, including a child applying for Medicaid on the basis of blindness or disability;
      (ii) $50 a month for an institutionalized couple if both spouses are aged, blind, or disabled and their income is considered available to each other in determining eligibility; and

        (iii) For other individuals, a reasonable amount set by the agency, based on a reasonable difference in their personal needs from those of the aged, blind, and disabled.
      (2) For an individual with only a spouse at home, an additional amount for the maintenance needs of the spouse. This amount must be based on a reasonable assessment of need but must not exceed the highest of—
      (i) The amount of the income standard used to determine eligibility for SSI for an individual living in his own home, if the agency provides Medicaid only to individuals receiving SSI;
      (ii) The amount of the highest income standard, in the appropriate category of age, blindness, or disability, used to determine eligibility for an optional State supplement for an individual in his own home, if the agency provides Medicaid to optional State supplement recipients under § 435.230; or
      (iii) The amount of the medically needy income standard for one person established under § 435.812, if the agency provides Medicaid under the medically needy coverage option.
      (3) For an individual with a family at home, an additional amount for the maintenance needs of the family. This amount must—
      (i) Be based on a reasonable assessment of their financial need;
      (ii) Be adjusted for the number of family members living in the home; and
      (iii) Not exceed the higher of the need standard for a family of the same size used to determine eligibility under the State’s AFDC plan or the medically needy income standard established under Subpart I of this part for a family of the same size.
      (4) Amounts for incurred expenses for medical or remedial care that are not subject to payment by a third party, including—
      (i) Medicare and other health insurance premiums, deductibles, or coinsurance charges; and
      (ii) Necessary medical or remedial care recognized under State law but not covered under the State’s Medicaid plan, subject to reasonable limits the agency may establish on amounts of these expenses.
      (d) In determining the amount of the individual’s income to be used to reduce the agency’s payment to the institution, the agency may, for single individuals, deduct an amount (in addition to the personal needs allowance) for maintenance of the individual’s home if—
      (1) The amount is deducted for not more than a 6-month period; and
      (2) A physician has certified that the individual is likely to return to his home within that period.”
      Compare footnote 9, supra; see Missouri State Division of Family Services v. Barclay, 705 S.W.2d 518, 522 n.3 (Mo. App. 1985) (“[i]t is only an academic exercise ... to distinguish the applicability of each of these regulations as they contain identical provisions”).

       The plaintiff cites Marcus’ Appeal from Probate, 199 Conn. 524, 509 A.2d 1 (1986), and Zeoli v. Commissioner of Social Services, 179 Conn. 83, 425 A.2d 553 (1979), for the proposition that the defendant may give effect to a Probate Court order. She notes that the defendant is apparently inconsistent in adopting some Probate Court orders and rejecting others. In Marcus’Appeal from Probate the department of income maintenance sought to rely on a Probate Court order disallowing certain gifts made by the conservatrices for a medicaid applicant. We agreed with the department that the amount of the gifts, because they had been disallowed, were “available” to the applicant. In Zeoli we interpreted the terms of a spendthrift trust to exclude certain assets from being “available” for medicaid eligibility purposes. The issue in this case is different, however, because no Probate Court order can supersede federal law, which requires that an “agency must reduce its payment to an institution” to a certain level. (Emphasis added.) 42 C.F.R. § 435.832 (a).

       The plaintiff and an amicus also argue that even if court ordered support does not fall within a 42 C.F.R. § 435.832 (c) exclusion, nothing prevents a state from excluding more from the plaintiffs income than the federal law allows. Nothing before us indicates that the state has chosen to do so and, further, given the mandate of § 435.832 (a), we doubt whether the state has an option to broaden permissible exclusions from an applicant’s income.

       This court and others, in addressing “available” income, have referred to the concept of “actual” availability. See, e.g., Heckler v. Turner, 470 U.S. 184, 200, 105 S. Ct. 1138, 84 L. Ed. 2d 138 (1985); Marcus’ Appeal from Probate, 199 Conn. 524, 532-33, 509 A.2d 1 (1986); Zeoli v. Commissioner of Social Services, 179 Conn. 83, 94, 425 A.2d 553 (1979). The word “actual” does not appear in the statute, however, and therefore is not entitled to independent weight.

       Title 20 of the Code of Federal Regulations, § 416.1123 (b) (2) provides: “Amount considered as income. We may include more or less of your unearned income than you actually receive. . . . (2) We also include more than you actually receive if amounts are withheld from unearned income because of a garnishment or to make certain payments such as payment of your Medicare premiums.”

       On June 19,1987, the Georgia Supreme Court dismissed the Johnson case without published opinion or order.

       The plaintiff relies heavily on the case of Deptartment of Health Services v. Secretary of Health & Human Services, 823 F.2d 323 (9th Cir. 1987). Indeed, the defendant admits that this is the only case decided contrary to his position, but submits that the court decided the case erroneously. Without passing on whether the Ninth Circuit Court of Appeals correctly decided the case, we note that it is distinguishable.
      In that case, the state of California submitted to the secretary a plan, California Plan Amendment 84-24, that proposed to treat court-ordered spousal and child support payments as “unavailable” to a medicaid recipient. Id., 326. The secretary disapproved the plan but the Court of Appeals reversed, holding that the secretary’s position, that the court-ordered funds were “available,” was arbitrary, capricious and an abuse of discretion. Nowhere in the case, however, did the Court of Appeals refer to 42 C.F.R. § 435.832, the regulation upon which we decide this case. Apparently either the secretary did not raise the issue, or the court did not consider it. In any case, we are convinced that 42 C.F.R. § 435.832 controls.

       See footnote 9, supra.

       The defendant represents that he was perfectly willing to allow a spousal support exclusion, but that $460 per month was more than he would, indeed could, allow under federal law. The plaintiff has not argued to the contrary.
      The plaintiff does argue that the defendant could have intervened as an interested party, pursuant to General Statutes § 45-75 (c), to protect its interests. At the time of the proceedings, however, the defendant had no reason to intervene as Wilbur Clark had not yet applied for medicaid. Arguably the defendant could have moved to modify the probate court order if, after Wilbur Clark applied for medicaid, he thought the probate court’s support order too high. Yet, by such a modification the defendant could not retrieve the amount he had paid out in the interim. Further we question the need to force the defendant to collaterally attack such court orders, especially when the defendant has his own federally mandated mechanism for determining at-home spousal support. 42 C.F.R. § 435.832 (c) (2); see footnote 17, supra.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Jacqueline Michaud v. James Wawruck et al.
    (13482)
    Peters, C. J., Healey, Shea, Callahan and Glass, Js.
    Argued November 3
    decision released December 20, 1988

      David R. Kritzman, with whom, on the brief, was Michael M. Darby, for the appellant (plaintiff).

      J. Patrick Dwyer, with whom, on the brief, was Timothy J. Fitzgerald, for the appellees (defendants).
   Peters, C. J.

The sole issue in this case is whether a written visitation agreement between a genetic mother and adoptive parents violates the public policy of this state. The plaintiff, Jacqueline Michaud, filed a complaint seeking specific enforcement of an “Open Adoption and Visitation Agreement” between herself and the defendants, James Wawruck and Cynthia Wawruck. The defendants filed a motion to strike the complaint, which was granted by the trial court, Barall, J., and was the basis for the subsequent rendering of a judgment in favor of the defendants by the trial court, Kaplan, J. The plaintiffs appeal to the Appellate Court has been transferred to this court pursuant to Practice Book § 4023. We find error and remand the case for further proceedings.

Since this appeal is from a judgment following the granting of a motion to strike, we must take the facts to be those alleged in the plaintiffs complaint and construe the complaint in the manner most favorable to sustaining its legal sufficiency. Blancato v. Feldspar Corporation, 203 Conn. 34, 36, 522 A.2d 1235 (1987); Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986). Accordingly, we assume the following factual circumstances concerning the “Open Adoption and Visitation Agreement” negotiated by the parties. The Ellington Probate Court, on August 31, 1981, terminated the plaintiff’s parental rights with respect to her child born on February 5, 1979. The same Probate Court terminated the father’s parental rights on January 6,1982. At some time thereafter, in 1982, the plaintiff filed a Superior Court action against the commissioner of children and youth services to set aside the Probate Court’s decree terminating her parental rights, on the ground that her consent to that proceeding had been fraudulently procured by the child’s father. The child’s foster parents, who were then seeking to adopt the child, were permitted to intervene as defendants in the Superior Court action. The plaintiff agreed to withdraw her lawsuit, and to allow the adoption to go forward, in exchange for the defendants’ agreement to permit regular visitation between the plaintiff and the child during the child’s minor years.

The agreement between the parties was placed on record in the Superior Court on September 16, 1983. Acquiescence in the agreement was noted, in open court, by counsel for the plaintiff, for the defendants, for the commissioner, and for the minor child. The agreement was not, however, made part of the subsequent decree of the Probate Court permitting the defendants to adopt the child, although the parties to that proceeding, having all appeared in the Superior Court action, were fully aware of its terms. After the adoption had been finalized, the defendants terminated all visitation between the plaintiff and the child.

The trial court, after reviewing these facts, granted the defendants’ motion to strike the plaintiff’s complaint because, in its view, enforcement of the “Open Adoption and Visitation Agreement” would violate Connecticut’s adoption statutes. According to the trial court, adoption, as a creature of statute, must comply strictly with statutory requirements, and the existing statutes governing adoption preclude private “side agreements” that would serve to perpetuate a relationship, after adoption, between a genetic parent and an adopted child. The court noted that termination of parental rights, under General Statutes § 45-61b (g), operates as a “complete severance by court order of the legal relationship . . . between the child and his parent. . . . ” Furthermore, under General Statutes § 45-64a, adoption creates new legal relationships in which the adopting parents are completely substituted for the genetic parents of an adopted person. Finally, the trial court observed that General Statutes § 45-63 requires agreements about adoption to be in writing and filed in the Probate Court. Relying on these statutory provisions, and a number of out-of-state cases, the court concluded that the contract between the parties could not confer upon the plaintiff a specifically enforceable right to visitation after completion of the adoption process.

Although the plaintiff’s appeal purports to raise three issues about the enforceability of her “Open Adoption and Visitation Agreement,” there is really only one question that we must resolve: did the trial court err in concluding that this agreement violated the public policy reflected in our adoption statutes? We disagree with the trial court’s ruling.

The validity of an “open adoption” agreement is a matter of first impression for this court. Before we address the merits of this question, we should note that the title “open adoption,” which has apparently become the standard characterization of such agreements, conveys a misleading impression of what such agreements intend to accomplish. The plaintiff does not seek to “open,” to set aside or to diminish in any way the adoptive process that has substituted the defendants as the legal parents of the child. The plaintiff’s rights are not premised on an ongoing genetic relationship that somehow survives a termination of parental rights and an adoption. Instead, the plaintiff is asking us to decide whether, as an adult who has had an ongoing personal relationship with the child, she may contract with the adopting parents, prior to adoption, for the continued right to visit with the child, so long as that visitation continues to be in the best interest of the child.

Our statutes recognize that visitation encompasses considerations that differ from those that govern custody, guardianship or parental status. The plaintiff reminds us that, in the adoption statutes themselves, while an application for adoption must disclose pending proceedings “affecting the custody of the child to be adopted . . . [f]or the purposes of [such disclosure], visitation rights granted by any court shall not be considered as affecting the custody of the child.” General Statutes § 45-63 (a) (2). The defendants maintain that this statutory distinction merely reflects the fact that Probate Court adoption proceedings necessarily must take outstanding custody orders into account, while visitation rights are not so implicated. This explanation for the distinction contained in § 45-63 may well be accurate but it does not eradicate the existence of the distinction and thus supports the plaintiffs position that the adoption statutes do not expressly make a visitation agreement void as against public policy.

Even more significantly, our visitation statute, General Statutes § 46b-59, permits the Superior Court, upon a proper application, to “grant the right of visitation with respect to any minor child . . . to any person .... In making, modifying or terminating such an order, the court shall be guided by the best interest of the child .... Visitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person ... to whom such visitation rights are granted. The grant of visitation rights shall not prevent any court of competent jurisdiction from thereafter acting upon the custody of such child, the parental rights with respect to such child or the adoption of such child and any such court may include in its decree an order terminating such visitation rights.” In Temple v. Meyer, 208 Conn. 404, 410, 544 A.2d 629 (1988), we recently noted that this statute “leaves great latitude for the exercise of judicial discretion because it does not focus on the legal relationship of the parties involved. . . . The only criterion under § 46b-59 is the best interest of the child.” See also Manter v. Manter, 185 Conn. 502, 508, 441 A.2d 146 (1981). All this plaintiff seeks is a court order consistent with the statutory constraints imposed on visitation by § 46b-59.

In light of these statutes, we are unpersuaded that the agreement between the parties in this case violates the public policy of Connecticut. It would be elevating form over substance to allow the plaintiff to obtain visitation rights by filing an appropriate “application” in the Superior Court, but to deny her the opportunity to seek such rights under a contractual umbrella.

Case law in other jurisdictions does not persuade us that we should strike down the visitation agreement in this case. To a significant extent, the cases turn on legislative determinations that vary from state to state. We note nonetheless that People ex rel. Sibley v. Sheppard, 54 N.Y.2d 320, 429 N.E.2d 1049, 445 N.Y.S.2d 420 (1981), concluded, as do we, that the statutory creation of an adoptive family does not automatically require complete severance of the child from all further contact with former relatives. Similarly, Weinschel v. Strople, 56 Md. App. 252, 261, 466 A.2d 1301 (1983), concluded, as do we, that as long as the best interest of the child is the determinative criterion, public policy does not forbid an agreement about visitation rights between a genetic parent and adoptive parents. In re Custody of Atherton, 107 Ill. App. 3d 1006, 438 N.E.2d 513 (1982), on which the trial court relied, is distinguishable because that decision focused on the impropriety of parental bargaining about post-adoption custody when, according to the court, the purpose of the parties’ contract was to bypass judicial determinations of custody. That is not this case.

Traditional models of the nuclear family have come, in recent years, to be replaced by various configurations of parents, stepparents, adoptive parents and grandparents. See Temple v. Meyer, supra; Manter v. Manter, supra. We are not prepared to assume that the welfare of children is best served by a narrow definition of those whom we permit to continue to manifest their deep concern for a child’s growth and development. The record of the 1982 Superior Court proceedings to set aside the termination of the plaintiff’s parental rights demonstrates that, in the present case, the “Open Adoption and Visitation Agreement” was openly and lovingly negotiated, in good faith, in order to promote the best interest of the child. The attorney for the child reported that the child thought the agreement between her mother and her soon-to-be adoptive parents would be “the best world that she could imagine.” This agreement did not violate public policy, either ab initio or upon the subsequent entry of a decree of adoption.

We therefore remand this case to the trial court for a hearing on the merits of the plaintiff’s claim that visitation would now be in the best interest of the child. Our observations about the genesis of the “Open Adoption and Visitation Agreement” are intended to express no opinion about how that claim should be resolved in light of the circumstances presently confronting the child.

There is error, the judgment is set aside and the case is remanded to the trial court for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       The “Open Adoption and Visitation Agreement” provides in relevant part:
      “1. Adoption. The parties shall all cooperate fully with the state DCYS in the orderly completion of an adoption of the child by the adopting parents.
      2. Termination of Rights. The natural mother will withdraw here legal challenge ... as soon as the adopting parents have approval of their adoption application by DCYS.
      3. Visitation. The adopting parents will cooperate fully with the natural-mother in the natural mother’s visits with the child both now and after the adoption takes place until the child’s 18th birthday. The parties agree to be guided in carrying out this provision by the present laws of Connecticut regarding reasonable visitation, which are partly embodied in Connecticut General Statutes Section 46b-56, as they pertain to visitation rights of noncustodial parents in dissolutions of marriage. The tender age of the child and her high sensitivity to her, up to the present, state of uncertainty shall be taken into account by the parties.
      Each of the parties shall at all times in good faith endeavor to maintain in the child respect and affection for the other parties.
      The rights of visitation shall not be exercised by the natural mother at any time or in such a manner as to interfere with the education and normal social and school activities of the child.
      Visitation shall be twice a month for three (3) hours each visit at the Wawrucks’ home.”

       General Statutes § 45-61b provides in relevant part: “(g) ‘Termination of parental rights’ means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent or parents so that the child is free for adoption except it shall not affect the right of inheritance of the child or the religious affiliation of the child.”

       General Statutes § 45-64a provides in relevant part: “effects of final decree of ADOPTION, surviving RIGHTS. A final decree of adoption, whether issued by a court of this state or a court of any other jurisdiction, shall have the following effect in this state:
      “(1) All rights, duties and other legal consequences of the genetic relation of child and parent shall thereafter exist between the adopted person and the adopting parent and his relatives. Such adopted person shall be treated as if he were the genetic child of the adopting parent, for all purposes including the applicability of statutes which do not expressly exclude an adopted person in their operation or effect;
      “(2) The adopting parent and the adopted person shall have rights of inheritance from and through each other and the genetic and adopted relatives of the adopting parent. The right of inheritance of an adopted person extends to the heirs of such adopted person, and such heirs shall be the same as if such adopted person were the genetic child of the adopting parent;
      “(3) The adopted person and the genetic children and other adopted children of the adopting parent shall be treated, unless otherwise provided by statute, as siblings, having rights of inheritance from and through each other. Such rights of inheritance extend to the heirs of such adopted person and of the genetic children and other adopted children, and such heirs shall be the same as if each such adopted person were the genetic child of the adopting parent;
      “(4) The adopted person shall, except as hereinafter provided, be treated as if he were the genetic child of the adopting parent for purposes of the applicability of all documents and instruments, whether executed before or after the adoption decree is issued, which do not expressly exclude an adopted person in their operation or effect. The words ‘child,’ ‘children,’ ‘issue,’ ‘descendant,’ ‘descendants,’ ‘heir,’ ‘heirs,’ ‘lawful heirs,’ ‘grandchild’ and ‘grandchildren,’ when used in any will or trust instrument shall include legally adopted persons unless such document clearly indicates a contrary intention. Nothing in this section shall be construed to alter or modify the provisions of section 45-162 regarding children born through A.I.D.;
      “(5) The legal relationship between the adopted person and his genetic parent or parents and the relatives of such genetic parent or parents is terminated for all purposes, including the applicability of statutes which do not expressly include such an adopted person in their operation and effect. The genetic parent or parents of the adopted person is relieved of all parental rights and responsibilities;
      “(6) The genetic parent or parents and their relatives shall have no rights of inheritance from or through the adopted person, nor shall the adopted person have any rights of inheritance from or through his genetic parent or parents and their relatives, except as provided in this section;
      “(7) The legal relationship between the adopted person and his genetic parent or parents and the relatives of such genetic parent or parents is terminated for purposes of the construction of the documents and instruments, whether executed before or after the adoption decree is issued, which do not expressly include the individual by name or by some designation not based on a parent and child or blood relationship, except as provided in this section.”

       General Statutes § 45-63 (a) (1) provides: “Each adoption matter shall be instituted by filing an application in a court of probate, together with the written agreement of adoption, in duplicate. One of the duplicates shall be sent forthwith to the commissioner of children and youth services.”
      General Statutes § 45-63 (c) (2) provides: “At the hearing the court may deny the application, enter a final decree approving the adoption if it is satisfied that the adoption is for the best interests of the child or order a further investigation and written report to be filed, in duplicate, within whatever period of time it directs. A duplicate of such report shall be sent to the commissioner. The court may adjourn the hearing to a day after that fixed for filing the report. If such report has not been filed with the court within the specified time, the court may thereupon deny the application or enter a final decree in the manner provided in this section.”

       The plaintiff’s three issues ask us to rule separately about whether the “Open Adoption and Visitation Agreement,” which is “supported by mutual consideration,” is: (1) void and unenforceable as against public policy; (2) specifically enforceable as a contract right after the completion of the adoption process; or (3) violative of the public policy expressed in the Connecticut statutes governing adoption. The defendants’ motion to strike was not premised on any deficiency in consideration, as the transcript of the hearing before the trial court, Barall, J., makes clear.

       See C. Amadio & S. Deutsch, “Open Adoption: Allowing Children to ‘Stay in Touch’ with Blood Relatives,” 22 J. Fam. L. 59 (1983-84).

       The plaintiff’s complaint did not clearly articulate that her claim for specific enforcement of the “Open Adoption and Visitation Agreement” was conditioned upon her ability to persuade a trier of fact that her visitation with the child would be in the child’s best interest. At the trial court hearing on the motion to strike, however, the plaintiff expressly and consistently limited her claim to relief in this fashion. Obliged as we are, in ruling upon a motion to strike, to construe a complaint in the manner most favorable to sustaining its legal sufficiency; Blancato v. Feldspar Corporation, 203 Conn. 34, 36, 522 A.2d 1235 (1987); Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986); we conclude that the complaint should be construed to incorporate a “best interest of the child” standard. We note that, although the trial court raised a question about the sufficiency of the complaint in this regard at the hearing, the defendants did not premise their motion to strike on this ground. Furthermore, the proposition that any and all visitation rights are impliedly premised on a factual finding “guided by the best interest of the child” finds statutory support in General Statutes § 46b-59.


author: Callahan, J.

text:
    State of Connecticut v. Peter R. Gaffney
    (13284)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.
    Argued November 2
    decision released December 20, 1988

      Donald D. Dakers, public defender, for the appellant (defendant).

      MitchellS. Brody, deputy assistant state’s attorney, with whom, on the brief, was Patrick Clifford, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant was charged in a substitute information with the crimes of burglary in the first degree in violation of General Statutes § 53a-101 (a), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) and 53a-70 (a), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (B) and robbery in the first degree in violation of General Statutes § 53a-134 (a) (3).

The charges arose out of an incident that occurred on May 8, 1986, in Meriden in which the defendant, using a pretext, gained entry to the apartment of a female neighbor. After having been admitted to her apartment, he produced a knife and forced her to disrobe. He then gagged his victim, bound her to her bed and unsuccessfully attempted to have sexual intercourse with her. Thereafter, he searched the victim’s apartment and took several hundred dollars from a desk drawer. After leaving his victim’s apartment, the defendant fled, first to Chicago, and then to California where he voluntarily entered a hospital. He was later arrested and returned to Connecticut.

At his trial the defendant admitted the elements of the crimes charged. In his defense he produced evidence of, and relied upon, the affirmative defense of mental disease or defect provided by General Statutes § 53a-13. A jury, however, convicted the defendant on all counts of the substitute information. The trial court subsequently imposed an effective sentence of forty-one years, suspended after twenty-nine years, to be followed by a period of probation of five years.

In his appeal, the defendant claims that the trial court erred when it allowed the state, during cross-examination of the defendant and during final argument to the jury, to substitute what he denominates as the “policeman at the elbow” test of insanity for the statutory test of insanity provided by § 53a-13. The defendant’s claim is without merit.

The principal issue at the defendant’s trial was the volitional aspect of the insanity defense, that is, whether the defendant lacked substantial capacity, as a result of mental disease or defect, to control his conduct within the requirements of the law. See General Statutes § 53a-13. During cross-examination of the defendant, the state, in pursuing the issue of the defendant’s alleged inability to control his conduct, asked him the question, “If there were six police officers sitting at the kitchen table playing poker, you think you would have gone into that bedroom and tied [the victim] to the bed?” The defendant objected to the question as “irrelevant.” The trial court overruled the defendant’s objection and the state repeated essentially the same question. In response, the' defendant initially replied that he was unable to answer such a hypothetical inquiry. After prodding by the state, however, the defendant observed that he “wanted to be arrested anyway,” that he had “turned himself in” and that “[i]t didn’t make any difference.”

Thereafter, during summation, the defendant took exception to a portion of the state’s final argument wherein the state apparently reflected on whether the defendant would have been able to control his conduct if there had been “six police officers sitting in the room when he entered [the victim’s] apartment.” The trial court “overruled” the defendant’s exception stating that “[i]t was part of the evidence. It’s proper argument.”

The defendant argues that § 53a-13, which provides in pertinent part that “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” (emphasis added), is the exclusive test for the affirmative defense of insanity. He contends that the “policeman at the elbow” test, which he claims was suggested by the state in its hypothetical question and in its closing comments, and sanctioned by the court, differs from the exclusive statutory test set forth in § 53a-13 because that test requires the jury to find that the defendant totally lacked the capacity to control his conduct within the requirements of the law.

The defendant is correct that the statutory test is exclusive. State v. Toste, 178 Conn. 626, 633, 424 A.2d 293 (1979). The record, however, fails to disclose how the hypothetical query by the state or the reference thereto in its final argument could possibly have been interpreted by the jury as delineating the test to be applied to its determination of whether the defendant had proved the affirmative defense of insanity. The transcript reveals that, after the defendant testified in support of the insanity defense, the state, on cross-examination, concentrated its attack on the claimed inability of the defendant to control his conduct. During the course of the state’s questioning, the defendant acknowledged that on occasions in the past he had been able to suppress his sexual urges due to his concern for the consequences of his contemplated actions or out of fear of retribution. In allowing the hypothetical question complained of, the trial court, in keeping with that line of questioning, was obviously permitting the state to plumb the depths of the defendant’s capacity to restrain himself under various circumstances. Such an inquiry was at least of some relevance to the defendant’s ability to control his conduct within the requirements of the law, which is an integral facet of the statutory defense of insanity and was the central issue in the case. It would take a tortured reading of the record to construe the state’s cross-examination as creating the “test” for insanity. Although the state, in its effort to make a point, hypothesized a rather extreme situation, the allowance of the hypothetical question posed by the state lay within the broad discretion afforded the trial court to determine the permissible scope of cross-examination. United States v. Guillette, 547 F.2d 743, 755 (2d Cir. 1976); State v. Briggs, 179 Conn. 328, 333-34, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); State v. Amaral, 179 Conn. 239, 244, 425 A.2d 1293 (1979); Gurecki v. Johnson, 175 Conn. 297, 298, 398 A.2d 311 (1978); State v. Rose, 168 Conn. 623, 636, 362 A.2d 813 (1975); 81 Am. Jur. 2d, Witness § 472.

Further, any danger that the jury might employ a test other than the statutory test when assessing the defendant’s insanity defense was eliminated by the trial court’s jury instructions. The trial court, in giving those instructions, never mentioned the hypothetical question propounded by the state nor did it allude to any test for insanity other than the statutory test. In addition, after it had specifically told the jurors that they were required to follow the court’s instructions on the law, the trial court proceeded to instruct them on the correct statutory standard for insanity on at least eight occasions. In the absence of some indication to the contrary, other than conjecture by the defendant, we are constrained to presume that the jurors followed the trial court’s instructions in that regard. State v. Williams, 202 Conn. 349, 364, 521 A.2d 150 (1987); State v. Barber, 173 Conn. 153, 156, 376 A.2d 1108 (1977).

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-101. burglary in the first degree: CLASS B felony, (a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument, or (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”
      “[General Statutes] Sec. 53a-92. kidnapping in the first degree, (a) A person is guilty of kidnapping in the first degree when he abducts another person and when . . . (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”
      “[General Statutes] Sec. 53a-49. criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      “[General Statutes] Sec. 53a-70. sexual assault in the first degree: class b felony: one year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”
      “[General Statutes] Sec. 53a-72a. sexual assault in the third degree: class D felony, (a) A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact . . . (B) by the threat of use of force against such other person or against a third person, which reasonably causes such person to fear physical injury to such person or a third person . . . .”
      “[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 ... (3) uses or threatens the use of a dangerous instrument . . . .”

       “[General Statutes] Sec. 53a-13. lack op 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.”

       We have been unable to find any reference to such a test for insanity in the cases or the literature concerning the subject.

       The words quoted are a partial quote from the defendant’s counsel when he took exception to the state’s argument. Transcripts of the final arguments were not available at the time of oral argument and the best information we have indicates that the final arguments were not transcribed.

       In his brief, the defendant concedes that the trial court’s charge was correct and properly limited to the statutory provisions. Further, the defendant never requested the trial court to instruct the jury to disregard the so-called “policeman at the elbow” test.


author: Covello, J.

text:
    State of Connecticut v. Marvin L. Smith
    (13322)
    Peters, C. J., Healey, Shea, Callahan and Co vello, Js.
    Argued October 6
    decision released December 20, 1988

      Joseph G. Bruckmann, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Jay F. Huntington, deputy assistant state’s attorney, with whom, on the brief, was Peter Markle, former assistant state’s attorney, for the appellee (state).
   Covello, J.

The defendant, Marvin Smith, has appealed from a judgment of conviction of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a) following a jury trial. The defendant claims that: (1) the trial court erred in allowing a police officer, as an expert witness, to give opinion testimony concerning the defendant’s intent to sell narcotics; and (2) the state’s attorney’s repeated expressions of opinion during summation denied him his due process rights under the United States and Connecticut constitutions to a fair trial. We find no error.

The jury could reasonably have found that on June 26, 1986, at 1:30 a.m., the defendant was the operator of a Lincoln Continental automobile that was stopped by Waterbury police officers investigating a complaint of a disturbance involving guns. The officers found a blue cap under the car, kicked there by the accused, containing three or four blue glassine bags of cocaine, eight to ten vials with red caps containing “crack,” a form of cocaine, ten white glassine bags containing heroin, a one hundred dollar bill and some twenty dollar bills. A search of the automobile produced five or six more glassine bags containing cocaine, four more vials of “crack,” four plastic bags of marihuana, a number of elastic bands and more cash. The defendant claims that the money and illegal substances all belonged to a person known only as Mark who had fled from the defendant’s vehicle before the police approached.

At trial, the state asked one of the investigating officers, experienced in drug investigations, whether, in his opinion, the defendant possessed the narcotics with the intent to sell them. The officer responded, “Yes, that was my opinion.” The defendant admittedly made no objection to the question.

I

The defendant claims that the trial court erred in allowing a police officer to testify to the defendant’s intent with respect to the narcotics. Despite defense counsel’s failure to object at trial, the defendant asks us to review his claim: (1) as an exception under the holding in State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); (2) as plain error pursuant to Practice Book § 4185; or (3) in accordance with our holding in State v. Vilalastra, 207 Conn. 35, 540 A.2d 42 (1988). We decline to do so.

“Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” State v. Evans, supra, 69. “There appears ... to exist only two situations that may constitute ‘exceptional circumstances’ such that newly raised claims can and will be considered by this court. The first is . . . where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal. . . . The second ‘exceptional circumstance’ may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” (Emphasis added.) Id., 70. It is this second “exceptional circumstance” upon which the defendant relies.

In State v. Vilalastra, supra, we addressed the issue of whether an expert witness may, under nearly identical circumstances, furnish an opinion that a defendant possessed illegal drugs with the intent to sell them. We concluded that he could not. We held, however, that such a ruling was a matter of state evidentiary law and that no constitutional issue was involved. Id., 46, 47. Here, as in Vilalastra, we see no constitutional implication in the admission of this opinion testimony. “Generally, ‘the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.’ State v. Periere, [186 Conn. 599, 611, 442 A.2d 1345 (1982)], quoting United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1222 (7th Cir. 1974).” State v. Talton, 197 Conn. 280, 289-90, 497 A.2d 35 (1985). Since the defendant has not “clearly been deprived of a fundamental constitutional right”; State v. Evans, supra, 70; the second “exceptional circumstance” test is not present and Evans review is therefore unwarranted.

As an alternative basis for our consideration of this unpreserved claim, the defendant asks that we consider it as a matter of plain error pursuant to Practice Book § 4185. The defendant argues that General Statutes § 54-86i prohibits opinion testimony in illegal drug possession cases on the issue of a defendant’s intent to sell. He claims that the court acted contrary to this statutory provision in permitting the expert’s response and therefore committed plain error. This is by no means the language of the statute. While the state directs us to significant legislative history that suggests that this statute is intended solely for the purpose of limiting psychiatric testimony, we need not decide this issue here. Suffice it to say that such an error, if any, does not rise to the level required for plain error review. “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). This is clearly not the case here.

The defendant next asks that we consider this issue under our holding in State v. Vilalastra, supra. Specifically, the defendant points to that portion of the decision that states: “The defendant did not object to this rephrased question. The lack of an objection does not preclude our review of this claim, however, because the Appellate Court determined that [the expert witness’] reply, which is quoted in the text of this opinion, implicated constitutional error.” Id., 38 n.2.

This statement by no means creates a new area or standard for unpreserved review. It was precisely for this reason that we granted certification in State v. Vilalastra, supra, i.e., the Appellate Court’s erroneous holding that there were constitutional implications to the evidentiary ruling. As there noted, we held that there are no constitutional implications to such an evidentiary holding. Id.

II

Finally, the defendant claims that he was deprived of his due process rights under both the United States and Connecticut constitutions and denied a fair trial because of the state’s attorney repeated expressions of opinion during opening argument and summation concerning the defense offered by the defendant and the credibility of his witnesses. No objection, exception, request for a curative instruction nor motion for a mistrial was made concerning the allegedly improper comments. We hold that the actions of the state’s attorney did not impinge upon the defendant’s constitutional rights and did not deny him a fair trial and therefore we decline full appellate review.

“The defendant relies on a line of cases where we have reviewed claims of prosecutorial misconduct under State v. Evans, supra. In those cases where we have engaged in Evans review, the record has disclosed a pattern of repeated, strident and serious misconduct. ‘In the cases in which we have denied Evans review, the claimed misconduct consisted of isolated and brief episodes, and did not reveal a pattern of conduct repeated throughout the trial. Moreover, the misconduct was not blatantly egregious.’ State v. Williams, [204 Conn. 523, 537, 529 A.2d 653 (1987)]; see State v. Chace, 199 Conn. 102, 107-108, 505 A.2d 712 (1986); State v. Tyler-Barcomb, 197 Conn. 666, 672-74, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986); State v. Lubesky, 195 Conn. 475, 483-84, 488 A.2d 1239 (1985).” State v. Rodgers, 207 Conn. 646, 653-54, 542 A.2d 1136 (1988).

Examination of the record in this case fails to disclose the kind of remarks that rise to the level of “character assassination and vitriolic personal attacks that we have held to constitute a denial of the constitutional due process right [and] a fair trial.” Id., 654. We conclude, therefore, “that the remarks of the prosecutor as set forth in the record do not constitute the ‘exceptional circumstance’ contemplated in State v. Evans to warrant review of these unpreserved claims. For similar reasons, we conclude that these remarks do not warrant review as plain error.” Id.

There is no error.

In this opinion the other justices concurred.

       A total of $585 was recovered from the hat and the car.

       The testimony was as follows:
      “Q. So, it was your opinion, Detective [Jose] Velazquez, based on the quantity, the variety and the amount that this was possessed for sale?
      “A. Yes, that was my opinion.”

       Despite the narrow appellate window which this review offers, there is statistical evidence that corroborates its expanding use for reviewing unpreserved error. See J. Ranucci, “State v. Evans: The Unexceptional Exception,” 61 Conn. B.J. 359 (1987). This being the case the question arises, unresolved here, as to whether the ruling in Evans continues to serve the limited purpose for which it was intended.

       Practice Book § 4185 states in relevant part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial . . . . The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.”

       General Statutes § 54-86i provides: “No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto, except that such expert witness may state his diagnosis of the mental state or condition of the defendant. The ultimate issue as to whether the defendant was criminally responsible for the crime charged is a matter for the trier of fact alone.”

       The following is a sampling of the challenged remarks characterized by the defendant as the state’s attorney’s personal opinion: “And, I submit to you, I don’t believe that, on the basis of the evidence in this courtroom, there is any such person Mark. I believe it was conveniently made up, he was conveniently made to appear and then to disappear”; “As I said, I don’t think the evidence even supports a finding that there was any fourth person in this car. I don’t think Andre Clark or Orlene Hobbs are worthy of your belief’; “Andre Clark went on to—and he even admitted some things that I believe are damaging to the defense. He admitted that Mark got out of the back seat, if ever there was a Mark”; “[The defendant] tried to escape. And, he was caught without ever losing sight. So, they had to make up an imaginary fourth person to take the blame for this crime . . . ”; “The making of a prior inconsistent statement affects her credibility. I don’t see how you can divorce that from your mind, how you can just find that not to be important in assessing her credibility, somebody who just walks into court and all of a sudden makes up a person named Mark with no last name and no address and no other information . . . .”


author: Hull, J.

text:
    Connecticut National Bank, Executor (Estate of Elbert S. Overbaugh) v. Commissioner of Revenue Services
    (13417)
    (13418)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.

      Argued October 12
    decision released December 20, 1988

      William J. Friedeberg, tax attorney II, with whom, on the brief, were Joseph I. Lieberman, attorney general, Albert E. Sheary, first assistant commissioner of revenue services, and Frank P. Iodice, for the appellant in the first case (defendant commissioner of revenue services).

      David E. Ormstedt, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant in the second case (defendant Joseph I. Lieberman).

      Peter T. Mott, with whom was Edward J. Kelleher for the appellee in both cases (plaintiff).
   Hull, J.

This case raises the narrow issue of whether bequests to a nonprofit cemetery association for its corporate purposes are exempt from the Connecticut succession tax. After the Fairfield Probate Court denied the exemption, the plaintiff executor appealed to the Superior Court, which reversed the Probate Court and found the bequests to be exempt. The defendants, the commissioner of revenue services and the attorney general, filed separate appeals which were heard together. The commissioner claims that the court erred in finding, pursuant to General Statutes § 12-347, that (1) a cemetery association is a charity exempt from succession tax, and (2) bequests to a cemetery association are exempt as a transfer “in trust for the care of any cemetery lot.” The attorney general claims error only on the first basis assigned by the commissioner. We find error.

The history of this litigation is not in dispute. The plaintiff is the executor of the estate of Elbert S. Overbaugh. Under Overbaugh’s will a bequest of $20,000 was made to the Oak Lawn Cemetery Association (cemetery association) of Fairfield with the income therefrom to be used for the cemetery association’s “general corporate purposes.” Further, one fifth of the decedent’s residuary estate was bequeathed to the cemetery association for its “corporate purposes.” The taxable value of the two bequests totals $178,761.62. The plaintiff filed a succession tax return claiming that the bequests to the cemetery were exempt from the succession tax pursuant to General Statutes § 12-347 (a). The commissioner designated the cemetery association as a Class C beneficiary not exempt from the succession tax, and claimed additional tax and interest due in the amount of $21,371.56. The Probate Court upheld the commissioner’s computation of the tax and denied the succession tax exemption on the ground that “the cemetery was not organized and operated exclusively for charitable purposes.” The appeal to the Superior Court followed.

The case was tried on the following stipulated facts. Oak Lawn Cemetery Association was organized in 1865 as a stock corporation under the general laws of Connecticut. The cemetery association was created in order to establish a public cemetery and to provide for its maintenance. The Articles of Association state: “All stockholders shall be entitled to receive dividends on all shares subscribed and paid for by them which dividends shall be paid out of the revenues arising from the sale of lots, until such dividends shall amount to the principal and interest of the same so subscribed and paid in. And after the sum subscribed and paid in shall have been thus repaid to the stockholders, all future revenue of the association shall be forever sacredly devoted to the improvement or extension of the said cemetery and to create a fund for the protection of these grounds forever.” The capital stock was retired and paid in full in 1873, since which time the cemetery association has consisted of lot owners. It has no religious affiliation. It has a policy of charging a reduced fee to families for the burial of indigents.

The trial court ruled that the cemetery association was founded for a charitable purpose and that the bequests were to be used for charitable purposes, and that the bequests therefore were exempt from the succession tax. The court also stated: “Even though the aforementioned reasons support the finding of exemption in this case, the Court would reach the same and by another clause of Section 12-347. That section . exempts ‘any transfer to any person, association or corporation in trust for the care of any cemetery lot.’ Although the Commissioner argues that the use of the word ‘any’ restricts the use of this exemption to a particular cemetery lot and not to a cemetery association, which manages many cemetery lots, the Court does not believe that the Legislature intended such a result.”

We may summarily dispose of the trial court’s conclusion set forth in its memorandum of decision that it would reach the same conclusion, favoring succession tax exemption, because of the last clause of § 12-347 (a). It is beyond dispute that a transfer in trust for the care of any cemetery lot is exempt under that clause. We further note that General Statutes § 12-350 (e) provides for a deduction from a gross taxable estate for “funeral expenses and all amounts actually expended or to be expended for a headstone or monument or the care of any cemetery lot.” The plaintiff argues that since the revenue received by the cemetery association from the bequests of the decedent must be applied toward the maintenance of the cemetery, a gift for the general use of the association is equivalent to a gift for the care of any lot. Such reasoning stretches the meaning of the exemption beyond the breaking point. The bequests involved in this case are for the cemetery association’s “general corporate purposes” and “corporate purposes.” General Statutes § 1-1 (a) provides that “[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . . ” “ ‘[I]n the absence of ambiguity, courts cannot read into statutes, by construction, provisions which are not clearly stated; Point O’Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 366, 423 A.2d 90 (1979); but must ascribe plain and ordinary meaning to the language used. Mazur v. Blum, 184 Conn. 116, 118, 441 A.2d 65 (1981); Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978). . . .’ ” Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984). “We have consistently held that if a statute is clear and unambiguous, there is no room for construction.” Murray v. Lopes, 205 Conn. 27, 33, 529 A.2d 1302 (1987). We decline to transform the decedent’s bequests into a “trust for the care of any cemetery lot.” The judgment of the trial court cannot be sustained on such a tenuous basis.

A much more difficult question is raised by the defendants’ argument that a public cemetery is not an organization formed for charitable purposes within the meaning of § 12-347 (a). Our analysis of this issue requires a close look at State ex rel. Willow Monument Works, Inc. v. Mt. Grove Cemetery Assn., 168 Conn. 447, 362 A.2d 1341 (1975), which the defendants claim is dispositive of this issue.

In State ex rel. Willow Monument Works, Inc., the defendant cemetery association (Mountain Grove), which maintained a public cemetery, sold bronze markers for profit to its lot holders. The plaintiff monument works (Willow Monument) brought an action for forfeiture of Mountain Grove’s charter and for an injunction to restrain Mountain Grove from selling bronze markers to its lot holders. Id., 449. In its combined appeal from the judgment rendered for Mountain Grove in each case, Willow Monument claimed that, in its capacity as a public cemetery, Mountain Grove was “a charitable organization devoted to a charitable public use”; id., 450; and that by virtue of the statute of charitable trusts; General Statutes § 45-79; and the statute of charitable uses; General Statutes § 47-2; lands and property owned by Mountain Grove could not be used for commercial purposes, unless reasonably necessary to continue that charitable purpose. Id., 449-51. In evaluating the merits of the plaintiffs claim in State ex rel. Willow Monument Works, Inc., we undertook a detailed historical analysis of the relevant statutory and case law regarding cemeteries in the context of charitable uses and purposes. Ultimately, we concluded: “[0]ur case law and the legislative history of the statute of charitable uses make it clear that in this state the operation of cemeteries is not denominated or considered charitable.” Id., 455. In reaching this conclusion, we noted that the provision in the statute of charitable uses concerning grants, devises or bequests to a cemetery merely “prevents such [transfers] from being invalid under the rule against perpetuities but does not make such a transfer a charitable one. Nor does the statute either directly or by implication make the operation of a cemetery a charitable use.” Id., 452. Furthermore, we stated that the “public use” aspect of a cemetery, although it might engender special legislative treatment in the form of property tax exemptions and the right of eminent domain, did not “render the use a charitable one or the recipient a charitable entity.” Id., 454.

Justice Bogdanski, in a strong dissent, argued that the majority opinion had fallen into error by failing to recognize the widely accepted distinction between cemeteries open to the public, like Mountain Grove, which usually are considered “charitable,” and cemeteries consisting of private burial grounds, which are not “charitable.” Id., 459-63. There is a good deal of merit in this argument.

Nevertheless, for the plaintiff to prevail in this case we would have to overrule State ex rel. Willow Monument Works, Inc. We have repeatedly stated, however, that “[i]f . . . stare decisis is to continue to serve the cause of stability and certainty in the law—a condition indispensable to any well-ordered system of jurisprudence—a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.” Herald Publishing Co. v. Bill, 142 Conn. 53, 62, 111 A.2d 4 (1955); see Ely v. Murphy, 207 Conn. 88, 94-95, 540 A.2d 54 (1988); Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 570, 409 A.2d 1020 (1979). Although reasonable persons might disagree with the conclusion of the majority in State ex rel. Willow Monument Works, Inc., that cemeteries are not charitable operations, we do not today find before us “the most cogent reasons and inescapable logic” which would compel us to overturn such a recent decision, and we therefore decline to do so. Our refusal today to overrule State ex rel. Willow Monument Works, Inc., is also consistent with this court’s repeated acknowledgment of the rule that a statute granting an exemption from taxation should be strictly construed. “Generally, taxing statutes are strictly construed. Caldor, Inc. v. Heffernan, 183 Conn. 566, 571, 440 A.2d 767 (1981); Naylor v. Brown, 166 Conn. 581, 587, 353 A.2d 709 (1974). ‘Any statute creating a tax exemption must likewise be strictly construed against the party claiming an exemption.’ Caldor, Inc. v. Heffernan, supra; see Connecticut Theater Foundation, Inc. v. Brown, 179 Conn. 672, 677, 427 A.2d 863 (1980); Crescent Beach Assn. v. East Lyme, 170 Conn. 66, 71, 363 A.2d 1045 (1976).” White Oak Corporation v. Department of Revenue Services, 198 Conn. 413, 421, 503 A.2d 582 (1986).

Having thus declined to overrule State ex rel. Willow Monument Works, Inc., we find that our holding in that case is dispositive of the issue now before us. We conclude, therefore, that the bequests of the decedent Elbert S. Overbaugh to the cemetery association do not qualify as transfers to a charitable organization within the meaning of General Statutes § 12-347 (a) and, consequently, such bequests are not exempt from state succession taxes.

There is error, the judgment is set aside and the case is remanded with direction to dismiss the plaintiffs appeal.

In this opinion the other justices concurred.

       General Statutes § 12-347 (a) provides in pertinent part: “There shall be exempt from the tax imposed by this chapter all transfers to or for the use of . . . any corporation, institution, society, association or trust, incorporated or organized under the laws of this state . . . formed for charitable, educational, literary, scientific, historical or religious purposes . . . and any transfer to any person, association or corporation in trust for the care of any cemetery lot.”

       General Statutes § 45-79 provides: “Any charitable trust or use created in writing or by deed by any resident of the state, or any public and charitable trust or use for aiding and assisting any person or persons to be selected by the trustees of such trust or use to acquire education, shall forever remain to the uses and purposes to which it has been granted according to the true intent and meaning of the grantor and to no other use.”

       General Statutes § 47-2 provides: “All estates granted for the maintenance of the ministry of the gospel, or of schools of learning, or for the relief of the poor, or for the preservation, care and maintenance of any cemetery, cemetery lot or monuments thereon, or for any other public and charitable use, shall forever remain to the uses to which they were granted, according to the true intent and meaning of the grantor, and to no other use whatever.”