author: Glass, J.

text:
    Lisa Ann Perez v. Orlando Perez, Jr.
    (13597)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.

      Argued April 5
    released July 4, 1989

      J. Adrian Rebollo, with whom was Steven A. Levy, for the appellants (paternal grandparents).

      I. David Marder, with whom was Irene L. Cornish, for the appellee (plaintiff).

      Denise Magnoli McNair, for the minor child.
   Glass, J.

The principal issue in this case is whether the trial court had subject matter jurisdiction to modify a custody decree issued by a Superior Court of the Commonwealth of Puerto Rico. The prior decree awarded the custody of Orlando Perez III (Lanny) to his paternal grandparents, the defendants Orlando Perez, Sr., and Lorraine Perez. The defendants have appealed from the trial court’s judgment modifying the prior decree and awarding custody of the child to his mother, the plaintiff Lisa Ann Perez. We find no error.

The facts of this case present a tortuous and unhappy history of legal bickering over the custody of the minor child. The plaintiff married the defendant Orlando Perez, Jr., on January 29, 1983, in Middletown. On June 25,1983, she gave birth to Lanny, the only child of the marriage. The couple and their son lived with the paternal grandparents in Portland until early 1984, when Orlando, Jr., and the plaintiff separated. Thereafter, Lanny continued to live with his paternal grandparents. In February, 1984, the plaintiff commenced dissolution proceedings in the Superior Court for the judicial district of Tolland. Shortly thereafter, Orlando, Jr., fled with Lanny to Florida and later to Puerto Rico. He then initiated custody proceedings in the Superior Court of Puerto Rico. In September, 1984, the Connecticut trial court rendered judgment dissolving the marriage and, with the plaintiff’s assent, deferred resolution of Lanny’s custody to the Puerto Rico courts. On November 1, 1984, the Puerto Rico court entered a decree awarding custody to the paternal grandparents, and granting the plaintiff reasonable visitation rights. Immediately after issuance of the order, Orlando, Jr., and the paternal grandparents returned with Lanny to Connecticut.

On March 25, 1985, the plaintiff filed a petition for modification in the Connecticut Superior Court, seeking custody of her son. That court, Kelly, J., denied the plaintiff’s request for custody, but granted her visitation rights additional to those granted in the 1984 Puerto Rico decree. On the plaintiff’s appeal, the Connecticut Appellate Court set aside the trial court’s denial of the modification petition on an issue unrelated to the present appeal, and remanded the case for further proceedings. Perez v. Perez, 8 Conn. App. 107, 510 A.2d 1020 (1986). Thereafter, in December, 1987, the Connecticut trial court entered an order, according to an agreement between the plaintiff and all defendants, granting the plaintiff further visitation rights. In January, 1988, however, the defendant grandparents left Connecticut and took Lanny to Puerto Rico without informing the plaintiff. The plaintiff subsequently filed a motion for contempt in the Connecticut Superior Court, asserting that the grandparents had violated her visitation rights. Thereafter, on February 8, 1988, she filed a new petition for modification seeking custody.

A hearing on the plaintiff’s contempt motion was held on February 16, 1988. The defendants, however, did not attend. The trial court continued the hearing to February 19, 1988, and ordered the defendants to return Lanny to the court on that date. The defendants, however, neither attended nor returned Lanny as ordered, and the trial court adjudged them in contempt of court. On March 28, 1988, the defendants failed to appear for a hearing on the plaintiff’s petition for modification. The trial court, however, continued the hearing to April 4,1988, upon the assurances of the defendants’ counsel that his clients would attend. The court admonished their counsel that the defendants’ failure to appear on April 4 would be a “significant negative factor in evaluating their position with respect to this modification.” Although counsel advised the trial court that he had informed his clients of the court’s warning, the defendants did not attend the hearing on April 4 or any of the subsequent hearings.

Because the March, 1985 modification petition had not been decided on remand, the trial court treated the February, 1988 petition as a reclaim for a hearing on the original petition. The court conducted hearings on the plaintiff’s petition on various days from April 4, 1988, to April 21,1988. While the hearings were in progress, Orlando Perez, Jr., and Orlando Perez, Sr., appeared in the Superior Court of Puerto Rico and obtained a resolution asserting that the Puerto Rico court continued to have jurisdiction over Lanny’s custody. The resolution, dated April 15, 1988, indicated that the Superior Court judge in Puerto Rico had accepted a stipulation submitted by the child’s father and grandfather and, accordingly, had referred the matter of Lanny’s custody to a family social worker for recommendations concerning “what home or under whose custody would ensure the well being of [Lanny].” The resolution also restricted the removal of Lanny from the jurisdiction of the Puerto Rico court. A copy of the resolution was filed in the Connecticut Superior Court on April 19, 1988. There were also filed in the trial court letters dated April 18 and 19, 1988, from Orlando Perez, Sr., and from the grandparents’ attorney in Puerto Rico. These letters represented that “Puerto Rico has again assumed jurisdiction regarding this case. . . .” Neither the letters nor the resolution of April 15, 1988, indicated the date on which Orlando Perez, Sr., and Orlando Perez, Jr., initiated the new action.

On May 5,1988, the Connecticut trial court rendered judgment granting the plaintiff custody of her son. In its memorandum of decision, the court found that it had subject matter jurisdiction to decide the case, despite the Puerto Rico court’s apparent assertion of jurisdiction. The trial court further found that the 1984 Puerto Rico custody award had not been in Lanny’s best interests. It noted that the only evidence at that hearing was the reports of Connecticut and Puerto Rico family relations investigators, both of which had recommended that the plaintiff be given custody. The court also found that all the present evidence indicated that the plaintiff “is a mature, stable young woman who loves her son and is fully capable of caring for him,” and that there was no evidence suggesting that custody in the plaintiff would be detrimental to the child. It concluded that the child’s best interests would be served by granting the plaintiff custody. Accordingly, the trial court rendered judgment modifying the November, 1984 Puerto Rico court order, and awarded custody to the plaintiff, effective immediately. The judgment also provided that the defendants would be given reasonable visitation rights.

On appeal, the defendant grandparents claim that the trial court erred in: (1) finding that it had subject matter jurisdiction to rule on the plaintiff’s motion for modification; (2) failing to require the filing of an affidavit regarding other custody proceedings and failing to communicate with the court in Puerto Rico; (3) proceeding on the plaintiff’s motion for modification prior to the filing of a case study report; (4) relying on a presumption in favor of custody to the plaintiff that could be rebutted only if the defendants demonstrated that a change of custody would be detrimental to the child, and drawing an adverse inference from the defendants’ failure to appear and testify; and (5) ordering the immediate change of custody, in light of the conflicting evidence before it and the absence of sufficient information properly to determine the best interests of the child. We find no error.

I

The defendants first claim that, under the Uniform Child Custody Jurisdiction Act (UCCJA), General Statutes § 46b-90 et seq., the trial court erred in ruling that it had jurisdiction to modify the custody order of the Puerto Rico court. They argue that Connecticut did not qualify as Lanny’s “home state” at the time the modification action commenced and, further, that Puerto Rico had maintained jurisdiction over Lanny’s custody. We disagree.

The UCCJA provides in relevant part: “(a) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless (1) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this [act] or has declined to assume jurisdiction to modify the decree and (2) the court of this state has jurisdiction.” General Statutes § 46b-104; see also 28 U.S.C. § 1738A (f). Connecticut has jurisdiction to make or modify a decree if Connecticut “is the home state of the child at the time of commencement of the proceeding.” General Statutes § 46b-93 (a) (1) (A); see also 28 U.S.C. § 1738A (c) (2) (A). “ ‘Home state’ means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months .... Periods of temporary absence of any of the named persons are counted as part of the six month . . . period . . . .” General Statutes § 46b-92 (5); see also 28 U.S.C. § 1738A (b) (4).

The trial court found that the plaintiff had commenced the modification action on March 25, 1985, when she first filed her petition. It found that Lanny had lived in Connecticut since his birth in June, 1983, until early February, 1984, when the plaintiff filed the dissolution action. At that time, Orlando, Jr., removed Lanny from Connecticut and kept him in Florida and Puerto Rico until November, 1984, when the defendants and Lanny returned to Connecticut. Although the period between November, 1984, and March, 1985, was less than six months, the court found that, under the definition of “home state,” Lanny’s removal to Florida and Puerto Rico constituted a period of temporary absence. General Statutes § 46b-92 (5). Consequently, the court ruled that it had jurisdiction under § 46b-93 (a) (1) (A), since Connecticut had been Lanny’s “home state” from his birth until the time the plaintiff commenced the action.

The defendants claim that the trial court erred in finding that, under § 46b-104 (a) (2), Connecticut had jurisdiction over the custody matter. They do not, however, argue this point, or challenge the trial court’s factual conclusion that Lanny’s removal to Florida and Puerto Rico for eight months in 1984 was a temporary absence. Consequently, we conclude that the trial court did not err in finding that Connecticut had jurisdiction under § 46b-104 (a) (2). The defendants do argue, however, that under subsection (1) of § 46b-104 (a), the Connecticut trial court could modify the Puerto Rico custody order only if Puerto Rico did not have jurisdiction, or declined to exercise jurisdiction, at the time the Connecticut trial court conducted the hearing. They assert that the April 15, 1988 resolution stating that the Puerto Rico court retained jurisdiction “ ‘in agreement with the Uniform Law of Jurisdiction of Custody of Minors . . .’ ” established that the Puerto Rico court had continuing jurisdiction. We disagree.

The Connecticut trial court found that, as of the date of the hearing, the grandparents had lived in Connecticut “at least since 1983.” The grandparents had maintained homes in both Portland and Middletown, the grandfather owned his own business here and the plaintiff had been a life-long Connecticut resident. Further, after Lanny was returned to Connecticut in November, 1984, all the parties remained in this state until approximately February 1,1988, when Lanny’s grandparents left the state and took him to Puerto Rico, thereby obstructing the plaintiff’s visitation rights. The trial court further found that the defendants’ removal of Lanny on approximately February 1,1988, appeared to be “in direct violation of a major purpose of the Act, to ‘deter abductions and other unilateral removals of children undertaken to obtain custody awards.’ ” General Statutes § 46b-91 (a) (5). On the basis of these facts, the trial court concluded that Lanny’s connection to Puerto Rico was “tenuous,” and that, therefore, Puerto Rico did not have jurisdiction under § 46b-104 (a) (1).

“ ‘The fact that the [Puerto Rico] court had previously considered the case may be one factor favoring its continued jurisdiction. If, however, all the persons involved have moved away or the contact with the state has otherwise become slight, modification jurisdiction would shift elsewhere.’ ” Kioukis v. Kioukis, 185 Conn. 249, 255, 440 A.2d 894 (1981), quoting UCCJA § 14, 9 U.L.A. 154-55 (1979). In the present case, the evidence overwhelmingly supported the trial court’s conclusion that, under §§ 46b-93 (a) and 46b-104 (a), the parties’ contacts with Puerto Rico did not demonstrate that that forum continued to have jurisdiction at the time of the Connecticut modification hearing. We conclude, therefore, that the trial court did not err in determining that it had subject matter jurisdiction to modify the prior custody order of the Superior Court of Puerto Rico.

II

The defendant grandparents next claim that, under General Statutes §§ 46b-99 and 52-231a, the trial court erred in failing to require the filing of an affidavit stating that there was no other pending action concerning the custody of the child. They also claim that, under General Statutes § 46b-96 (c), the trial court should have communicated with the Puerto Rico court to determine the appropriate forum for the litigation upon learning that an action concerning Lanny’s custody had been commenced in Puerto Rico. We are not persuaded.

Section 52-231a provides that before the trial court enters any decree concerning child custody, an affidavit must be filed in the court averring either that there is no other custody proceeding concerning the same child pending elsewhere or, if there is, that a decree of the trial court would not “conflict with ... or interfere with such other proceeding.” The pertinent part of § 46b-99 requires the parties to a child custody action to disclose to the court any information they may have obtained, at the outset or during the proceeding, concerning any other custody proceeding involving the child.

In the present case, the plaintiff attached an affidavit to her March 25,1985 petition for modification. That affidavit did not expressly aver that there were no other proceedings concerning Lanny’s custody at that time. It did, however, provide the court with a detailed account of the 1984 Puerto Rico custody hearing. Although we do not condone the deviation from the express requirements of § 52-231a, it is quite clear that the plaintiff's affidavit satisfied the purposes of that statute by fully apprising the trial court of any other custody proceedings involving Lanny. There were, in fact, no other pending custody proceedings in Puerto Rico or elsewhere on March 25,1985, or on February 8, 1988, when the plaintiff reclaimed a hearing on her petition. Further, there is nothing in the record to suggest that the plaintiff did not adhere to the disclosure requirements of § 46b-99.

Even if we assume that the affidavit did not satisfy § 52-231a, the trial court’s rendering of judgment without such an affidavit was harmless. The defendants themselves commenced the April, 1988 custody proceeding in Puerto Rico while hearings on the Connecticut matter were in progress. The defendants’ attorneys in Puerto Rico and Connecticut apprised the trial court of the new Puerto Rico custody action. The trial court gave plenary consideration to whether it had subject matter jurisdiction to modify the prior decree. In concluding that it had jurisdiction, and that Puerto Rico did not, the court implicitly found that its decree would not “conflict with or interfere with [the] other proceeding.” The purpose of § 52-231a, therefore, was fulfilled. Consequently, any error in the trial court’s rendering of judgment without a § 52-231a affidavit was harmless.

Similarly, we are not persuaded that the trial court erred in failing to communicate with the Puerto Rico court once it learned of that court’s April 15,1988 resolution. See General Statutes § 46b-96 (c). The defendants argue that the Puerto Rico court’s resolution of April 15, 1988, placed them in the untenable position of having to violate that resolution in order to comply with the Connecticut court’s order to return Lanny. They claim, therefore, that the trial court’s failure to communicate with the Puerto Rico court “to the end that the issue may be litigated in the more appropriate forum” placed them on the proverbial “horns of a dilemma.” Having instituted the Puerto Rico action by means of an intraparty stipulation, however, the defendants honed the points of those horns themselves. They do not challenge the trial court’s implicit conclusion that their flight to Puerto Rico in February, 1988, and subsequent initiation of the custody action in that forum was in bad faith. In fact, they concede that, in removing Lanny from Connecticut in February, 1988, they obstructed the plaintiff’s visitation rights that had been provided by the original Puerto Rico decree in 1984 and subsequently augmented in Connecticut in 1985 and 1987. The trial court therefore did not err in not communicating with the Puerto Rico court.

Ill

We disagree with the defendants’ next claim that the trial court should not have disposed of the case without the filing of a previously ordered case study report. General Statutes § 46b-6 states that the trial court may order an investigation of any circumstances relevant to the disposition of a family relations matter. Section 46b-7 provides that, if such an investigation has been ordered, the trial court shall not dispose of the case until the report has been filed. In the present case, the trial court ordered a § 46b-6 investigation. Michael Festa, the investigating family relations officer, testified at trial. He began the investigation in late March, 1988, and interviewed the plaintiff, her boyfriend and her mother. Festa testified about the information he had acquired during his investigation. He also testified that his supervisor had advised him to discontinue the investigation because of the absence of the other parties. The record demonstrates that the grandparents’ flight from Connecticut precluded the completion or filing of the report. The trial court, therefore, did not err in disposing of the case without the filing of the report.

IV

The defendants next claim that the trial court erred in ruling that they had the burden of proving that it would be detrimental for the child to be in the plaintiff’s custody. They also claim that the court erred in drawing an adverse inference from the defendants’ failure to attend the hearing and testify. We are not persuaded.

General Statutes § 46b-56 (b) provides that “[i]n making or modifying any order with respect to custody or visitation, the court shall be guided by the best interests of the child . . . .” General Statutes § 46b-56b, enacted in 1985 and amended in 1986, provides that “[i]n any dispute as to the custody of a minor child involving a parent and a nonparent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent, which presumption may be rebutted by showing that it would be detrimental to the child to permit the parent to have custody.” Public Acts 1985, No. 85-244, § 2; Public Acts 1986, No. 86-224.

In its memorandum of decision, the trial court stated that, under § 46b-56b, the plaintiff still had the burden of showing “that it would be in the best interests of the child to award custody to her. [The plaintiff, however,] is aided by a presumption in her favor which may be overcome only by substantial evidence which proves that such a change would be detrimental to the child.” The court explained that “[although the . . . presumption [does] not . . . shift the burden of proof as a matter of law . . . [i]f the opposing party’s evidence fails to prove the rebutting facts . . . [the] presumption must be accepted as true.” The trial court went on to find that “[t]here was not the slightest evidence that [custody in the plaintiff] would be detrimental to the child if she should have custody of him,” and concluded that it was “presently in the best interests of the child for his mother to have custody of him.”

The defendants argue that the trial court impermissibly applied § 46b-56b retroactively since the statute was enacted after the date of the original custody order in November, 1984. We disagree. Statutory amendments affecting evidentiary rules, such as rules concerning the burden of proof, generally apply to all proceedings after the amendment, regardless of when the incidents underlying the action occurred. Allen v. Fisher, 118 Ariz. 95, 574 P.2d 1314 (1977); United Securities Corporation v. Bruton, 213 A.2d 892, 893-94 (D.C. App. 1965); City Council v. Vinciullo, 364 Mass. 624, 628, 307 N.E.2d 316 (1974); but see Matter of Reardon, 25 App. Div. 370, 372, 269 N.Y.S.2d 635 (1966).

The defendants also argue that § 46b-56b should apply only to initial custody determinations and not to modification actions. In their view, the presumption would make no sense in a modification áction commenced by a parent if, in the prior proceeding, the child’s best interests must have been found to lie with the nonparent. The express language of § 46b-56b, however, makes the presumption favoring the parent applicable to “any dispute as to the custody of a minor child involving a parent and a nonparent . . . .’’(Emphasis added.) Moreover, the rule that favors the custody of parents over nonparents in any custody dispute is well established. See Hao Thi Popp v. Lucas, 182 Conn. 545, 551, 438 A.2d 755 (1980); H. Clark, Domestic Relations § 17.5, p. 591 and cases cited at pp. 591-92 n.5; cf. McGaffin v. Roberts, 193 Conn. 393, 405-407, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985).

We are not persuaded by the defendants’ assertion that because the evidence did not warrant the conclusion that custody in the plaintiff would serve the child’s best interests, the trial court’s reliance on the § 46b-56b presumption led to an erroneous result. The trial court heard testimony from the plaintiff as well as her expert witness, social worker Yvonne B. Cataldi, that at present Lanny was strongly attached to his grandparents, felt hostility toward his mother, and that a transfer in custody might be somewhat traumatic. Cataldi also testified, however, that a close mother-son relationship was essential to Lanny’s psychological development, that his contacts with his mother demonstrated that their relationship, if allowed to be nurtured, would improve and stabilize, that the plaintiff was in all respects a good mother, and that the defendants had consistently acted to thwart the development of a mother-son relationship between Lanny and the plaintiff.

The defendants’ expert, child psychologist Eugene R. Boylin, agreed with Cataldi that it was important for Lanny to have continued and increased contacts with his mother. He nevertheless testified that a change in custody at the present time might severely affect Lanny’s development. The trial court found, however, that Cataldi’s testimony was entitled to greater weight than Boylin’s. Cataldi had counseled and interviewed all the parties, together and separately, at length, but Boylin had seen the parties on only three occasions, during which he had been introduced to the plaintiff as a friend of the family, and not as a child psychologist.

“We cannot retry the case.” Cookson v. Cookson, 201 Conn. 229, 242, 514 A.2d 323 (1986). In the present case, “we cannot say, from our review of the record, that the conclusions of the trial court were legally or logically incorrect or unsupported by the facts or that the evidence was insufficient for the trial court to rule as it did.” Id., 243-44. Moreover, we agree with the defendants that nothing in § 46b-56b affects the trial court’s obligation to award custody upon the basis of the child’s best interests. See Hall v. Hall, 186 Conn. 118, 121, 439 A.2d 447 (1982). In this case, however, “[t]here is no doubt that the trial court understood and employed the ‘best interests’ standard as the ultimate basis of its decision.” McGaffin v. Roberts, supra, 408. Even if we assume that the evidence was such that the only reasonable conclusion would have been that Lanny’s best interests would be served equally well by custody in either party, the trial court would have been legally correct in awarding custody to the plaintiff because of the presumption of § 46b-56b. We conclude, therefore, that the trial court did not err in its application of § 46b-56b.

The defendants also claim that the trial court should not have drawn an adverse inference from their failure to attend and testify at the April, 1988 hearing. See Secondino v. New Haven Gas Co., 147 Conn. 672, 675,165 A.2d 598 (1960). They argue that such an inference is inapplicable to a custody hearing because it focuses not on the child’s best interests but on the conduct of the litigants. They further assert that it should not be applied in this case because, if they had attended the hearings, but left Lanny in Puerto Rico, as they were required to do under the Puerto Rico court’s resolution, they would have faced penalties pursuant to the trial court’s judgment of contempt. We are not persuaded.

On March 28, 1988, the trial court instructed the defendants’ counsel to contact his clients in Puerto Rico and inform them that “the court would consider their absence as a significant negative factor in evaluating their position with respect to this modification. . . . I want you to underscore . . . that their presence the court would consider ... a real necessity in evaluating whatever arguments they might have. Their absence from court is going to severely affect the strength of their arguments.” The hearing commenced on April 4,1988, as scheduled. The defendants did not attend. Their counsel informed the court that “I have talked to them .... I communicated very clearly the Court’s opinion that their presence, if not in court today, would be considered heavily in deciding this case . . . . ” Although counsel also informed the court that Orlando Perez, Sr., told him that he was trying to get a flight out of Puerto Rico, the record shows that the defendants did not attend on April 4 or on any of the subsequent hearing dates. The defendants have not argued on appeal that they were unable to attend because of difficulty in making travel arrangements. In its memorandum of decision, the trial court stated that “the court does infer that [the defendants’] testimony, if it had been given, would have been unfavorable to their cause.”

The record thus demonstrates that: (1) on February-19, 1988, the trial court found the defendants in contempt for failing to bring Lanny to court; (2) on March 28, 1988, the trial court admonished the defendants through counsel of the adverse consequences of their failure to attend the hearing or to testify; and (3) on April 4, 1988, the hearing on the plaintiffs petition began. These events occurred prior to the April 15, 1988 Puerto Rico court resolution restricting Lanny’s removal from the Commonwealth. Thus, the record does not support the defendants’ claim that they were legally constrained from attending the hearing at its outset. Further, as we have already indicated, the defendants obtained the Puerto Rico resolution by means of an intraparty agreement after the Connecticut trial court’s order to produce the child and after its admonition respecting the adverse inference. In Hall v. Hall, supra, 124, we stated that “[t]he . . . wilful disobedience of . . . court orders . . . evidenced gross disrespect for the law and raised questions about . . . character, which are relevant to the welfare of the child.” Under the circumstances of the present case, the trial court was entitled to draw an adverse inference from the defendants’ failure to testify.

V

The defendants’ last claim is that, in view of the conflicting evidence before it, the trial court abused its discretion in ordering a change in custody without first seeking additional information concerning Lanny’s best interests. We have already concluded that the trial court properly declined to communicate with the Puerto Rico court before reaching its decision. Further, we have already reviewed the defendants’ assertion that the evidence did not warrant a conclusion that a change in custody would be in the child’s best interests. We conclude that the trial court did not abuse its discretion in granting the plaintiffs petition for modification.

There is no error.

In this opinion the other justices concurred.

       Orlando Perez, Jr., although nominally a defendant, did not take part in the hearing on the plaintiffs petition.

       The plaintiff appealed the judgment of the Superior Court of Puerto Rico. In a judgment dated January 17,1985, the Supreme Court of Puerto Rico denied review without comment.

       In Perez v. Perez, 8 Conn. App. 107, 110, 510 A.2d 1020 (1986), the Appellate Court held that the trial court erred in failing to request the transcripts, records and other documents pertaining to the original custody order from the Superior Court in Puerto Rico as required by General Statutes § 46b-112.

       All parties in this case entered appearances. The trial court found that the paternal grandparents had filed an appearance on August 25, 1986, after remand of the case for further proceedings. The father of the child filed a pro se appearance on May 9,1987. The trial court appointed an attorney to represent the child. Although the maternal grandmother joined the case as an intervening party, she did not take part in the hearing.

       At the hearing, the plaintiff and Yvonne B. Cataldi, a social worker, testifed for the plaintiff. The plaintiff testified that she was presently working at two jobs, that she takes no medication and has no drug or alcohol problem, and that her home life is stable. Eugene R, Boylin, a clinical psychologist, testified for the defendants that the child’s custody should not be changed. The grandparents, although represented by counsel, did not testify, nor did they attend the trial.

       In the text of our discussion of the jurisdictional question, we have relied on language from the relevant provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), General Statutes § 46b-90 et seq., rather than the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A. The trial court determined that the UCCJA controlled the jurisdiction of this case. Puerto Rico does not appear to be a signatory of the UCCJA. Cf. Brown v. Brown, 195 Conn. 98, 99, 486 A.2d 1116 (1985), The parties, however, have not drawn our attention to any differences in language between the two statutes that would warrant an analysis different from that discussed above. Further, although the defendants challenge the trial court’s determination that it had jurisdiction, they do not challenge the trial court’s application of the UCCJA in making that determination. In any event, the PKPA, which is modeled on the UCCJA, “ ‘does not significantly disrupt the jurisdictional provisions of [the] UCCJA.’ ” Brown v. Brown, supra, 120. For convenience of reference, however, we cite the corresponding PKPA provisions in our discussion.

       The trial court found in the alternative that, whether the action was deemed to have commenced on March 25, 1985, or on February 8, 1988, it still had subject matter jurisdiction under General Statutes § 46b-93 (a) (1) (B), which gives the trial court jurisdiction if Connecticut “had been the child’s home state within six months before the commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state.” The court found further alternative jurisdiction under § 46b-93 (a) (2), which provides that the trial court will have jurisdiction if “it is in the best interest of the child that a court of this state assume jurisdiction because (A) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (B) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.” The defendants have not challenged the trial court’s conclusions regarding these alternative bases of jurisdiction.

       General Statutes § 46b-99 provides: “(a) Every party in a custody proceeding in his first pleading or in an affidavit attached to that pleading shall give information under oath as to the child’s present address, the places where the child has lived within the last five years, and the names and present addresses of the persons with whom the child has lived during that period. In this pleading or affidavit every party shall further declare under oath whether: (1) lie has participated as a party, witness or in any other capacity in any other litigation concerning the custody of the same child in this or any other state; (2) he has information of any custody proceeding concerning the child pending in a court of this or any other state; and (3) he knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child.
      “(b) If the declaration as to any of the above items is in the affirmative the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and as to other matters pertinent to the court’s jurisdiction and the disposition of the case.
      “(c) Bach party has a continuing duty to inform the court of any custody proceeding concerning the child in this or any other state of which he obtained information during this proceeding.”
      General Statutes § 52-231a provides: “Before any court enters any decree in a matter pending before it involving the custody of a minor child or children, an affidavit shall be filed with said court averring that there is no proceeding pending in any other court affecting the custody of such children or any of them or, if there is such a proceeding, a statement in detail of the nature of the proceeding and averring that the decree of the court would not conflict with or interfere with such other proceeding. For the purposes of this affidavit, visitation rights granted by the superior court shall not be considered as affecting the custody of such child or children.”
      See also Practice Book § 476.

       General Statutes § 46b-96 (c) provides: “If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction, it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with sections 46b-109 to 46b-112, inclusive. If a court of this state has made a custody decree before being informed of a pending proceeding in a court of another state, it shall immediately inform such court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction, it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.”

       As noted above, the copy of the Puerto Rico court’s April 15,1988 resolution, as well as the letters sent by Orlando Perez, Sr., and his lawyer in Puerto Rico, do not disclose the date on which Orlando Perez, Jr., and Orlando Perez, Sr., initiated the custody action in Puerto Rico. The defendants have not, however, challenged the trial court’s finding in its memorandum of decision that “[w]hile [the] hearing [on the plaintiff’s petition] was in progress, the child’s father appeared in the Puerto Rico superior court and obtained an order which asserts that court’s jurisdiction.”

       “[General Statutes] Sec. 46b-6. (Formerly Sec. 51-337). investigations. In any pending family relations matter the court or any judge may cause an investigation to be made with respect to any circumstance of the matter which may be helpful or material or relevant to a proper disposition of the case. Such investigation may include an examination of the parentage and surroundings of any child, his age, habits and history, inquiry into the home conditions, habits and character of his parents or guardians and evaluation of his mental or physical condition. In any action for dissolution of marriage, legal separation or annulment of marriage such investigation may include an examination into the age, habits and history of the parties, the causes of marital discord and the financial ability of the parties to furnish support to either spouse or any dependent child.”

       “[General Statutes] Sec. 46b-7. (Formerly Sec. 51-338). report of investigation to be filed. Whenever, in any family relations matter, including appeals from the superior court, an investigation has been ordered, the case shall not be disposed of until the report has been filed as hereinafter provided, and counsel and the parties have had a reasonable opportunity to examine it prior to the time the case is to be heard. Any report of an investigation shall be made in quadruplicate and shall be filed with the clerk and mailed to counsel of record.”

       In McGaffin v. Roberts, 193 Conn. 393, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985), we held that General Statutes § 45-43, which provides that if a father or mother dies or is removed as guardian, the other parent shall become sole guardian, did not create in a surviving father a presumption entitling him to custody of the child in preference to the child’s maternal grandmother. McGaffin was decided before the enactment of General Statutes § 46b-56b.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Motor Vehicle Manufacturers Association of the United States, Inc., et al. v. William A. O’Neill et al.
    (13555)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued May 2
    decision released July 4, 1989

      Mark R. Kravitz, with whom were Michael K. Brown and, on the brief, William H. Crabtree, Jane Lightfoot Watson, Charles H. Lockwood II and John T. Whatley, for the appellants (plaintiffs).

      Garry Desjardins, assistant attorney general, with whom were Robert M. Langer, assistant attorney general, and, on the brief, Clarine Nardi Riddle, acting attorney general, and William M. Rubenstein, assistant attorney general, for the appellees (defendants).

      John J. Woodcock III, pro se, the appellee (intervening defendant).
   Peters, C. J.

The dispositive issue in this appeal is the constitutionality of statutory procedures for the arbitration of motor vehicle disputes that, for manufacturers but not for consumers, severely limit the scope of judicial review for challenges to adverse arbitration determinations. This case is here pursuant to the remand that we ordered in Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 523 A.2d 486 (1987) (Motor Vehicle Manufacturers Assn. I), to amplify a factual record that we deemed inadequate for consideration of a reservation raising a number of constitutional challenges to the validity of Public Acts 1984, No. 84-338, codified as General Statutes §§ 42-181 through 42-185, both in its initial form and as amended in 1985 (Lemon Law II). Id., 80. Upon remand, and further factual stipulations by the parties, the trial court concluded that the plaintiffs had failed to establish any violation of their state or federal constitutional rights, and accordingly rendered a judgment denying their request for declaratory or injunctive relief. We find error.

The history of Lemon Law II, which is fully described in Motor Vehicle Manufacturers Assn. I, supra, 66-73, may be summarized as follows. In 1982, the legislature enacted General Statutes § 42-179 (Lemon Law I) in order to provide consumers of new motor vehicles additional substantive remedies for the enforcement of express warranties made by the manufacturers of such vehicles. The plaintiffs have not contested the constitutionality of Lemon Law I. Two years later, the legislature enacted Lemon Law II; General Statutes §§ 42-181 through 42-184; to provide such consumers an additional forum for the enforcement of express warranties. The new act authorizes consumers, but not manufacturers, to bring disputes about the performance of new motor vehicles to arbitration panels established by the department of consumer protection. General Statutes § 42-181 (a), (b), (c). The act also permits consumers, but not manufacturers, to reject an unfavorable arbitration decision and to institute a de novo civil action. See General Statutes §§ 42-179 (i) and 42-181 (c). Neither consumers nor manufacturers may pursue Lemon Law claims before a jury.

The plaintiffs, in their third amended complaint filed after our remand in Motor Vehicle Manufacturers Assn. I, attacked the constitutionality of Lemon Law II on three grounds. They claimed that the act: (1) deprived them of their right to a trial by jury, in violation of article first, § 19, of the Connecticut constitution; (2) improperly limited the scope of judicial review, in violation of the separation of powers provisions of articles second and fifth, § 1, of the Connecticut constitution and the right of access to courts provision of article first, § 10, of the Connecticut constitution; and (3) denied them due process and equal protection of the laws, in violation of the fourteenth amendment to the United States constitution and article first, §§ 8, 10 and 20, of the Connecticut constitution, because the act requires them to pay a $250 filing fee to defend against the claims of consumers.

None of these contentions persuaded the trial court. With respect to the claimed right to a jury trial, the court found, upon an analysis of statistical data contained in a stipulation between the parties, that the proceedings conducted pursuant to Lemon Law II were essentially equitable rather than legal, because the remedies sought from the arbitration panels, and awarded by them, went beyond requests and awards for price refunds. Cf. Motor Vehicle Manufacturers Assn. I, supra, 79-80. On the basis of this finding, the court concluded that the plaintiffs were not entitled to a jury trial. The court concluded, furthermore, that the scope of judicial review afforded to arbitration awards under Lemon Law II passed constitutional muster because the act entitled the plaintiffs to the same scope of review presently afforded to the determinations of administrative agencies under the Uniform Administrative Procedure Act. Finally, the court held that the act was not unconstitutional in requiring the manufacturer to pay the $250 filing fee; General Statutes § 42-181 (b); because it included a statutory provision permitting the waiver of any fee upon proof of economic hardship. General Statutes § 42-185. The court accordingly upheld the constitutionality of Lemon Law II.

In their appeal, the plaintiffs renew the same constitutional challenges that they raised at trial. Although we agree with the trial court’s resolution of the plaintiffs’ claimed right to a jury trial and to relief from filing fees, we disagree with the court’s construction of the act’s judicial review provisions as satisfying constitutional due process requirements, and hence find Lemon Law II unconstitutional in part.

I

The plaintiffs’ first challenge to Lemon Law II asserts that the statutory arbitration procedures contained in § 42-181 (c) unconstitutionally deprive them of their right to a trial by jury, in violation of article first, § 19, of the Connecticut constitution. In Motor Vehicle Manufacturers Assn. I, supra, 68-69, we described Lemon Law II as a statute that “provides supplemental remedies of repair, replacement and refund to facilitate the enforcement of express warranties made by [automobile] manufacturers . . . . ” In determining whether such a statutory cause of action must preserve the litigants’ right of access to a jury, this court has regularly applied a historical test: would this cause of action have been triable to a jury prior to the constitution of 1818? Id., 76, and cases there cited; see also Skinner v. Angliker, 211 Conn. 370, 375-78, 559 A.2d 701 (1989); Bishop v. Kelly, 206 Conn. 608, 618, 539 A.2d 108 (1988); Swanson v. Boschen, 143 Conn. 159, 164-66, 120 A.2d 546 (1956).

If Lemon Law II is accurately to be characterized, in law and in fact, as essentially a restatement of an enhanced cause of action for breach of express warranties, the plaintiffs would be correct in their contention that they cannot be deprived of their right to a trial by jury. “Whether a warranty claim is viewed as a contract action, a tort action, or a hybrid of the two . . . such a matter has always been triable to a jury.” Motor Vehicle Manufacturers Assn. I, supra, 77. If, however, the statute creates a new cause of action that is essentially an equitable claim for specific performance or rescission and restitution, then, as the defendants contend, there is no right to a jury trial for the enforcement or defense of Lemon Law II claims. We agree with the trial court that the record demonstrates the essentially equitable nature of Lemon Law II claims and hence we conclude that the plaintiffs have failed to prove their constitutional claim in this regard.

The trial court made the following findings relying on the records of 521 Lemon Law arbitration decisions rendered from October 1,1984, to September 30,1987. “Between 1985 and 1987, 75.58% of consumers requested refunds and 4.42% requested partial refunds. . . . However, 99.61% of the consumers requested replacement (51.35%), repair (6.54%), incidental expenses (22.31%), consequential damages (2.30%), finance charges (3.46%) or other remedies (13.65%). . . . Furthermore, between 1985 and 1987, 39.54% of consumers received refunds and .19% received partial refunds. . . . However, 94.63% of consumers received replacement (7.87%), repair (24.95%), incidental expenses (11.52%), finance charges (20.35%) or other remedies (29.94%).”

These factual findings, which are not clearly erroneous, do not support the plaintiffs’ allegation that the nature of Lemon Law II claims and remedies is essentially legal rather than equitable. In the remand that we ordered in Motor Vehicle Manufacturers Assn. I, supra, we asked for precisely this kind of factual exploration of the scope of Lemon Law arbitrations. We agree with the plaintiffs that, to the extent that refunds are central to such proceedings, recharacterizing such refund claims as claims for rescission and restitution would not resolve the question of whether such claims are essentially legal or equitable, particularly when a legal action for revocation of acceptance, under §§ 2-608 and 2-715 of the Uniform Commercial Code; General Statutes §§ 42a-2-608 and 42a-2-715; covers much the same ground. Id., 79; see also Aubrey’s R. V. Center, Inc. v. Tandy Corporation, 46 Wash. App. 595, 600-601, 731 P.2d 1124 (1987). The trial court found, however, that, to a significant extent, consumers sought and received orders for replacement and repair designed to approximate the kind of specific relief that is characteristically equitable. “ ‘[W]hen legal and equitable issues are combined in a single action, whether the right to a jury trial attaches depends upon the relative importance of the two types of claims. . . .’’’Texaco, Inc. v. Golart, 206 Conn. 454, 458-59, 538 A.2d 1017 (1988); United States Trust Co. v. Bohart, 197 Conn. 34, 45, 495 A.2d 1034 (1985). Overall, the flexibility and range of Lemon Law remedies, as well as the statutory linkage of claims for repair and replacement with claims for a variety of monetary remedies, reflect a pattern that is more equitable than legal. Indeed, the very enactment of Lemon Law II arises out of a legislative determination that legal remedies alone did not provide adequate relief for disappointed consumer purchasers of new motor vehicles. Cf. Conservation Commission v. Price, 193 Conn. 414, 429-30, 479 A.2d 187 (1984). We therefore conclude that the plaintiffs have not established that they were unconstitutionally deprived of their right to a jury trial.

II

The plaintiffs’ second challenge to Lemon Law II focuses on the limited judicial review that the act affords to manufacturers who are disappointed by the outcome of arbitral decisions. Although consumers are entitled, at their discretion, to initiate de novo civil proceedings to prosecute their Lemon Law claims; General Statutes §§ 42-179 (i) and 42-181 (c); manufacturers may only appeal from arbitration decisions “in accordance with the provisions of sections 52-417, 52-418, 52-419 and 52-420.” General Statutes § 42-181 (c). The cross-referenced provisions, designed to govern appeals from awards in consensual arbitrations, require courts to defer to arbitral resolution of virtually all issues of law and fact, so long as the arbitral award conforms to the terms of the issues submitted for arbitration. Diamond Fertiliser & Chemical Corporation v. Commodities Trading International Corporation, 211 Conn. 541, 547, 560 A.2d 419 (1989); Wilson v. Security Ins. Group, 199 Conn. 618, 626-27, 509 A.2d 467 (1986). Because Lemon Law II’s arbitration procedures are compulsory for manufacturers, the plaintiffs maintain that incorporation of consensual arbitration procedures violates the rights to judicial review that the Connecticut constitution guarantees to them. They claim first that the procedures violate the separation of powers provisions in that a legislatively created tribunal may resolve a legal dispute, traditionally an exclusive judicial function, without resort to review. Conn. Const., arts. II and V, § 1. Second, the plaintiffs claim that the provision that disallows them from pursuing judicial review of the arbitration panel’s decision violates their guaranteed right of access to courts. Conn. Const., art. I, § 10; see Ecker v. West Hartford, 205 Conn. 219, 234, 530 A.2d 1056 (1987). We agree with the plaintiffs.

This court has recently discussed the proper standard of judicial review of a compulsory arbitration award. Because of the fundamental difference between voluntary and compulsory arbitration, “a higher level of judicial review of an arbitration award is warranted where the arbitration is statutorily mandated.” American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 188, 530 A.2d 171 (1987); Wilson v. Security Ins. Group, supra, 630; Carofano v. Bridgeport, 196 Conn. 623, 637-38, 495 A.2d 1011 (1985); see also Mount St. Mary’s Hospital v. Catherwood, 26 N.Y.2d 493, 500, 260 N.E.2d 508, 311 N.Y.S.2d 863 (1970). In DelGreco, we cited, with approval, case law from a number of jurisdictions holding that “compulsory arbitration statutes that effectively close the courts to the litigants by compelling them to resort to arbitrators for a final and binding determination are void as against public policy and are unconstitutional.” American Universal Ins. Co. v. DelGreco, supra, 188. The constitutional grounds relied upon in these other jurisdictions include the very grounds pressed by the present plaintiffs: violation of a state’s constitutional separation of powers provisions, and violation of a state’s constitutional access to courts provision. Id., 189; see also Spillman v. United States Fidelity & Guaranty Co., 179 So. 2d 454, 455 (La. App. 1965); Macaluso v. Watson, 171 So. 2d 755, 758 (La. App. 1965); Biddeford v. Biddeford Teachers Assn., 304 A.2d 387, 402-403 (Me. 1973); Local 170, Transport Workers Union of America v. Circuit Judge, 322 Mich. 332, 347-48, 34 N.W.2d 71 (1948); Simon v. St. Elizabeth Medical Center, 3 Ohio Op. 3d 164, 167, 355 N.E.2d 903 (1976). In assessing the reach of these constitutional strictures, we concluded that compulsory arbitration passes constitutional muster “so long as fair procedures are provided by the legislature and ultimate judicial review is available. . . . Courts throughout the United States have uniformly upheld compulsory arbitration statutory schemes as against the constitutional challenges previously mentioned where de novo judicial review of the arbitrator’s award is available to either party.” (Emphasis in original.) American Universal Ins. Co. v. DelGreco, supra, 189.

Under § 42-181 (c), de novo judicial review is expressly afforded to consumers but not to manufacturers. The defendants justify this departure from the standard articulated in American Universal Ins. Co. v. DelGreco on the ground that the cross-reference in § 42-181 (c) to the judicial review standards of § 52-418, when properly construed, authorizes sufficiently broad judicial review to withstand the plaintiffs’ constitutional challenges. The defendants maintain that, in the context of compulsory arbitrations, § 52-418 permits judicial review closely resembling the scope of judicial review afforded to administrative proceedings. Pursuing that analogy, the defendants urge us to hold that § 52-418 authorizes a court, in an appeal from a compulsory arbitration award, to undertake a de novo review of questions of law and a substantial evidence review of questions of fact. Because the proposed standard would permit judicial review that is broader than that traditionally available for § 52-418 review of voluntary arbitration awards, it would, according to the defendants, meet constitutional requirements while accommodating the Lemon Law’s purpose of avoiding costly litigation. The trial court relied on the defendants’ statutory construction argument in rejecting the plaintiffs’ constitutional claims.

The defendants’ proffered construction, although it has constitutional appeal, finds little direct support in the language of §§ 42-181 (c) or 52-418. We might nonetheless reach for a somewhat strained construction in the service of our acknowledged obligation to implement the legislature’s purpose in a manner that is both effective and constitutional, if it were reasonably clear that such a construction accorded with the legislature’s underlying intent. Compare McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 706, 553 A.2d 596 (1989), and Moscone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981), with Bishop v. Kelly, supra, 617, and French v. Amalgamated Local Union 376, 203 Conn. 624, 636-37, 526 A.2d 861 (1987). The legislative history is, however, to the contrary. During the earlier stages of this litigation, while arguing Motor Vehicle Manufacturers Assn. I in this court, the parties suggested the possible applicability, in the judicial review of Lemon Law arbitration decisions, of the substantial evidence rule that governs administrative appeals. The legislature promptly enacted Public Acts 1987, No. 87-522, § 1, which amends General Statutes § 4-166, the definitions section of the Uniform Administrative Procedure Act, to exclude “automobile dispute settlement panels established pursuant to section 42-181” from the definition of “agency.” In effect, that amendment repudiated the suggestion that the administrative appeal standard of “substantial evidence” was intended to govern the judicial review of factfinding of Lemon Law II arbitrations. We considered the effect of similar legislative action in Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 539-41, 489 A.2d 363 (1985). There too the legislature had clarified its intent with regard to the scope of permissible administrative appeals during the pendency of judicial proceedings. We held that such a clarification bound the courts because of the legislature’s plenary authority to define the scope of administrative appeals. Id., 540. Applying that principle here leads us to conclude that the legislature intended to adopt a judicial review procedure for manufacturers contesting Lemon Law arbitration decisions that is substantially more limited than the review that a litigant may obtain after exhaustion of mandated administrative remedies. We agree with the plaintiffs that this limited review is constitutionally insufficient under the standards enunciated in American Universal Ins. Co. v. DelGreco, supra, 189.

Our conclusion about the unconstitutionality of the judicial review procedures incorporated in § 42-181 (c) finds additional support in the disparate access that the legislation affords to the various litigants who participate in Lemon Law II arbitrations. No question has been raised about the constitutionality of empowering the consumer to make the decision whether to invoke Lemon Law arbitration proceedings in the first instance. The difficulty arises because § 42-181 (c), in addition, permits the consumer, having invoked arbitration, to disregard an unfavorable award and to pursue a de novo civil action, while it limits the manufacturer to the record review contemplated by § 52-418. The parties have cited no authority, and we have discovered none, that the legislature, in fashioning rules for judicial review, may discriminate in such a fashion against the party whose participation in statutory arbitration proceedings is compulsory. We hold that such disparate treatment violates the plaintiffs’ constitutional right to a reasonable opportunity to have a remedy, “by due course of law,” in our courts. Conn. Const., art. I, § 10; see Ryszkiewicz v. New Britain, 193 Conn. 589, 597-600, 479 A.2d 793 (1984).

Ill

The plaintiffs’ final claim is that the provision of § 42-181 (b) requiring a manufacturer to pay a $250 filing fee to defend against a consumer’s complaint violates their constitutional guarantees of due process and equal protection of the laws. We conclude that the fee requirement does not violate the plaintiffs’ constitutional rights.

The plaintiffs argue that their having to pay an access fee violates their fundamental right to present a defense. If the plaintiffs were correct in their premise that the access fee deprives them of a judicial hearing, the statutory fee might have to pass a strict scrutiny test. Boddie v. Connecticut, 401 U.S. 371, 380, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971), upon which the plaintiffs rely, held that such an access fee “may offend due process [when] it operates to foreclose a particular party’s opportunity to be heard.” We are, however, unpersuaded of the plaintiffs’ premise that the statute imposes such draconian consequences. In conjunction with the $250 filing fee, General Statutes § 42-185 provides for a waiver of the filing fee upon proof of economic hardship. Thus, unlike the appellants in Boddie, if one of the plaintiffs somehow could not afford the filing fee, the legislature has provided for the vindication of that party’s right to be heard.

We are equally unpersuaded of the plaintiffs’ alternate argument that the $250 filing fee requirement deprives them of equal protection of the laws because it treats them differently from other civil defendants, who need not pay filing fees to defend themselves from suit. The equal protection clause mandates like treatment for all those similarly situated. Darak v. Darak, 210 Conn. 462, 473, 556 A.2d 145 (1989); Barde v. Board of Trustees, 207 Conn. 59, 65, 539 A.2d 1000 (1988). In determining the validity of disparities in personal treatment, courts ordinarily invoke the rational basis test, which is especially applicable to the review of economic and social legislation. See United States v. Kras, 409 U.S. 434, 446, 93 S. Ct. 631, 34 L. Ed. 2d 626 (1973); Chrysler Corporation v. Texas Motor Vehicle Commission, 755 F.2d 1192, 1202-1203 (5th Cir. 1985); Zapata v. Burns, 207 Conn. 496, 506-507, 542 A.2d 700 (1988). We conclude that there exists a rational nexus between the legislature’s goal of creating a fiscally independent arbitration mechanism for automobile consumers and the requirement that manufacturers pay a filing fee. The plaintiffs have, accordingly, failed to sustain their heavy burden of proving that this statutory provision is unconstitutional beyond a reasonable doubt. Zapata v. Burns, supra, 508; Peck v. Jacquemin, 196 Conn. 53, 64-65, 491 A.2d 1043 (1985).

There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment for the plaintiffs.

In this opinion the other justices concurred.

       The key provision is General Statutes (Rev. to 1987) § 42-181, which provides: “department arbitration procedure, records, appeals, (a) The department of consumer protection, shall provide an independent arbitration procedure for the settlement of disputes between consumers and manufacturers of motor vehicles which do not conform to all applicable warranties under the terms of section 42-179. The commissioner shall establish one or more automobile dispute settlement panels which shall consist of threé members appointed by the commissioner of consumer protection, only one of whom may be directly involved in the manufacture, distribution, sale or service of any product. Members shall be persons interested in consumer disputes and shall serve without compensation for terms of two years at the discretion of the commissioner. In lieu of referring an arbitration dispute to a panel established under the provisions of this section, the department of consumer protection may refer an arbitration dispute to the American Arbitration Association in accordance with regulations adopted in accordance with the provisions of chapter 54.
      “(b) An owner of any motor vehicle purchased at any time on or after October 1, 1984, which fails to conform to such applicable warranties as defined in said section 42-179, may bring a grievance to an arbitration panel if the manufacturer of the vehicle has not established an informal dispute settlement procedure which the attorney general has certified as complying in all respects with the requirements of said section 42-179. The consumer may initiate a request for arbitration by calling a toll-free telephone number designated by the commissioner or by requesting an arbitration hearing in writing. The consumer shall file, on forms prescribed by the commissioner, any information deemed relevant to the resolution of the dispute and shall return the form accompanied by a filing fee of fifty dollars. Such complaint form shall offer the consumer a choice of presenting any subsequent testimony orally or in writing. The filing fee shall be refunded if the arbitration panel determines that a complaint does not allege a violation of any applicable warranty under the requirements of said section 42-179. Upon acceptance of the complaint, the commissioner shall notify the manufacturer of the filing of a request for arbitration and shall obtain from the manufacturer, in writing on a form prescribed by the commissioner, any information deemed relevant to the resolution of the dispute. The manufacturer shall return the form within fifteen days of receipt, together with a filing fee of two hundred fifty dollars.
      “(c) The department of consumer protection shall investigate, gather and organize all information necessary for a fair and timely decision in each dispute. The commissioner may issue subpoenas on behalf of any arbitration panel to compel the attendance of witnesses and the production of documents, papers and records relevant to the dispute. The department shall forward a copy of all written testimony, including all documentary evidence, to an independent technical expert certified by the National Institute of Automotive Service Excellence or having a degree or other credentials from a nationally recognized organization or institution attesting to automotive expertise, who shall review such material and be available to advise and consult with the arbitration panel. An expert shall sit as a nonvoting member of an arbitration panel whenever oral testimony is presented. Such experts may be recommended by the commissioner of motor vehicles at the request of the commissioner of consumer protection. An arbitration panel shall, as expeditiously as possible, but not later than sixty days after the time the consumer files the complaint form together with the filing fee, render a fair decision based on the information gathered and disclose its findings and the reasons therefor to the parties involved. The decision shall provide appropriate remedies, including, but not limtied to one or more of the following:
      “(1) Repair of the vehicle;
      “(2) Replacement of the vehicle with an identical or comparable new vehicle acceptable to the consumer;
      “(3) Refund of the full contract price, plus collateral charges as specified in subsection (d) of said section 42-179;
      “(4) Reimbursement for expenses and compensation for incidental damages as specified in subsection (d) of said section 42-179;
      “(5) Any other remedies available under the applicable warranties, section 42-179, this section and sections 42-182 to 42-184, inclusive, or the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 88 Stat. 2183 (1975), 15 USC 2301 et seq., as in effect on October 1,1982.
      “The decision shall specify a date for performance and completion of all awarded remedies. Notwithstanding any provision of the general statutes or any regulation to the contrary, the department of consumer protection shall not amend, reverse, rescind or revoke any decision or action of an arbitration panel. The department shall contact the consumer, within ten working days after the date for performance, to determine whether performance has occurred. The manufacturer shall act in good faith in abiding by any department decision. In addition, if the decision is accepted by the consumer, either party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides, or, when the court is not in session, any judge thereof for an order confirming, vacating, modifying or correcting any award, in accordance with the provisions of sections 52-417, 52-418, 52-419 and 52-420. If it is determined by the court that the manufacturer has acted without good cause in bringing an appeal of an award, the court, in its discretion, may grant to the consumer his costs and reasonable attorney’s fees.
      “(d) The department shall maintain such records of each dispute as the commissioner may require, including an index of disputes by brand name and model. The department shall, at intervals of no more than six months, compile and maintain statistics indicating the record of manufacturer compliance with arbitration decisions and the number of refunds or replacements awarded. A copy of the statistical summary shall be filed with the commissioner of motor vehicles and shall be considered by him in determining the issuance of any manufacturer license as required under section 14-67a. The summary shall be a public record.
      “(e) If a manufacturer has not established an informal dispute settlement procedure certified by the attorney general as complying with the requirements of said section 42-179, public notice of the availability of the department’s automobile dispute settlement procedure shall be prominently posted in the place of business of each new car dealer licensed by the department of motor vehicles to engage in the sale of such manufacturer’s new motor vehicles. Display of such public notice shall be a condition of licensure under sections 14-52 and 14-64. The commissioner of consumer protection shall determine the size, type face, form and wording of the sign required by this section, which shall include the toll-free telephone number and the address to which requests for the department’s arbitration services may be sent.
      “(f) Any consumer injured by the operation of any procedure which does not conform with procedures established by a manufacturer pursuant to subsection (b) of section 42-182 and the provisions of Title 16 Code of Federal Regulations Part 703, as in effect on October 1,1982, may appeal any decision rendered as the result of such a procedure by requesting arbitration de novo of the dispute by an arbitration panel. Filing procedures and fees for appeals shall be the same as those required in subsection (b) of this section. The findings of the manufacturer’s informal dispute settlement procedure may be admissible in evidence at such arbitration panel hearing and in any civil action subsequently arising out of any warranty obligation or matter related to the dispute. Any consumer so injured may, in addition, request the attorney general to investigate the manufacturer’s procedure to determine whether its certification shall be suspended or revoked after proper notice and hearing. The attorney general shall establish procedures for processing such consumer complaints and maintain a record of the disposition of such complaints, which record shall be included in the annual report prepared in accordance with the provisions of subsection (a) of section 42-182.
      “(g) The commissioner of consumer protection shall adopt regulations, in accordance with the provisions of chapter 54, to carry out the purposes of this section. Written copies of the regulations and appropriate arbitration hearing procedures shall be provided to any person upon request.”

       The plaintiffs are: Motor Vehicle Manufacturers Association of the United States, Inc., a not-for-profit trade association of motor vehicle manufacturers; American Motors Corporation; Chrysler Corporation; Ford Motor Company; Volkswagen of America, Inc.; Automobile Importers of America, Inc., a not-for-profit trade association of motor vehicle importers; Alfa Romeo, Inc.; American Honda Motor Company, Inc.; American Isuzu Motors, Inc.; BMW of North America, Inc.; Fiat Auto U.S.A., Inc.; Jaguar Cars, Inc.; Lotus Performance Cars; Mazda Motors of America (Central), Inc.; Mitsubishi Motor Sales of America, Inc.; Nissan Motor Corporation in U.S.A.; Peugeot Motor Sales of America, Inc.; Porsche Cars of North America, Inc.; Renault U.S.A.; Rolls Royce Motors, Inc.; Saab-Scania of America, Inc.; Subaru of America, Inc.; Toyota Motor Sales, U.S.A., Inc.; and Volvo of America Corporation.
      The defendants are: Governor William A. O’Neill; Former Attorney General Joseph I. Lieberman; Commissioner of Consumer Protection Mary M. Heslin; the Department of Consumer Protection; Commissioner of Motor Vehicles Benjamin A. Muzio; and the Department of Motor Vehicles. Former State Representative John J. Woodcock III, a legislative sponsor of Lemon Law II, was permitted to intervene as a party defendant.

       A manufacturer may preclude a consumer from recourse to the Lemon Law II arbitration panels only if it establishes an informal dispute settlement mechanism that, to the satisfaction of the attorney general, complies with the requirements of 16 C.F.R. § 703 et seq. See General Statutes §§ 42-179 (i) and 42-181 (e). To date no manufacturer has obtained the necessary certification from the attorney general.

       Article first, § 19, of the Connecticut constitution provides: “The right of trial by jury shall remain inviolate.”

       The defendants acknowledged, in a supplement to their brief, that although “a consumer is entitled to reject the arbitration decision and [to] institute a de novo civil action in court . . . [such] a consumer is not entitled to a jury trial for . . . Lemon Law claims.”

       As the trial court noted, totalling the percentages adds up to more than 100 percent because most awards involved more than one remedy.

       A recent decision in New York reached a similar conclusion on this issue, albeit on somewhat different grounds. Motor Vehicle Manufacturers Assn. of the United States v. New York, 1989 N. Y. App. Div. LEXIS 4902 (1989).

       We recognize that manufacturers may theoretically avoid Lemon Law arbitrations in their entirety by establishing alternate dispute resolution mechanisms to the satisfaction of the attorney general. See footnote 3, supra. On the present record, however, we are persuaded that these plaintiffs’ submission to arbitration cannot be deemed voluntary. Compare Wilson v. Security Ins. Group, 199 Conn. 618, 626, 509 A.2d 467 (1986). In any case, the defendants’ own brief characterizes the arbitration process established by General Statutes § 42-181 as “statutorily mandated or compulsory in nature.”

       See, e.g., Detroit v. Detroit Police Officers Assn., 408 Mich. 410, 481-83, 294 N.W.2d 68 (1980); Mount St. Mary’s Hospital v. Catherwood, 26 N.Y.2d 493, 509-11, 260 N.E.2d 508, 311 N.Y.S.2d 863 (1970).

       Because the plaintiffs have advanced no argument that our state constitution affords them any greater protection than the federal constitution, we assume that the plaintiffs rely on federal constitutional guarantees. Connecticut Education Assn. v. Tirozzi, 210 Conn. 286, 293 n.8, 554 A.2d 1065 (1989); State v. Chung, 202 Conn. 39, 45 n.7, 519 A.2d 1175 (1987).

       The plaintiffs do not argue, nor do we conclude, that if filing fees for defendants are otherwise constitutional, the $250 filing fee unduly burdens their right to defend themselves. See United States v. Kras, 409 U.S. 434, 449, 93 S. Ct. 631, 34 L. Ed. 2d 626 (1973); Boddie v, Connecticut, 401 U.S. 371, 380-81, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971); In re South, 689 F.2d 162, 165 (10th Cir. 1982). Rather, they simply argue that access fees for defendants are per se unconstitutional.

       General Statutes § 42-185 provides: “Notwithstanding the provisions of any general statute, regulation or grant of authority to the contrary, no filing fee or statement required under the provisions of this chapter shall be waived, refunded, reduced or withheld from use, by the state pursuant to any contract, stipulated settlement, consent order, administrative directive or by any other means except as provided in this chapter or by order of a court of competent jurisdiction made upon proof of economic hardship and a finding that such settlement, consent order, directive or other action is in the public interest.”

       The plaintiffs have not challenged on appeal the disparity between the fee they must pay, $250, and the fee the consumer must pay, $50.


author: Covello, J.

text:
    Cos Cob Volunteer Fire Company No. 1, Inc., et al. v. Freedom of Information Commission et al.
    (13657)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued May 3
    decision released July 11, 1989

      Susan P. L'iemer, commission counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      William Nathaniel Carroll, for the appellees (plaintiffs).
   Covello, J.

This is an appeal from a decision of the Superior Court overruling an order of the Freedom of Information Commission (FOIC) that required the named plaintiff, the Cos Cob Volunteer Fire Company No. 1 (CCVFC), to open to the public certain portions of its meetings. The dispositive issue is whether the FOIC acted arbitrarily in concluding that certain portions of the CCVFC meetings were not “operational” within the meaning of General Statutes § 7-314 (b), and thus were subject to the open meeting provision of General Statutes § 1-21 (a). We conclude that the FOIC did not act arbitrarily and therefore we set aside the judgment and remand the case with direction to dismiss the plaintiffs’ appeal.

The relevant facts are not in dispute. The CCVFC is a volunteer fire department in the Cos Cob section of the town of Greenwich. On April 2, 1987, the complainant, Lawrence Orrico, a nonmember, attended a meeting of the CCVFC. Orrico was asked to leave the meeting.

Orrico thereafter filed a complaint with the FOIC alleging that the CCVFC violated his right to attend the meeting as provided by General Statutes § 1-21 (a). The CCVFC responded that it was not subject to the provisions of § 1-21 (a) because it was not a public agency within the meaning of General Statutes § l-18a (a). It further claimed that even if it were a public agency its meetings would be exempt from the Freedom of Information Act (FOIA) by reason of General Statutes § 7-314 (b) which provides that: “Any operational meeting of active members of a volunteer fire department shall not be subject to the provisions of sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive.”

The FOIC held a hearing on the matter and concluded that with respect to the bulk of its activities the CCVFC was a public agency within the meaning of § l-18a (a). The FOIC also made the following factual findings: “[T]his meeting included, among others, the following activities: a. a report by the chief on the fires responded to, including the number of fires and the manpower used[;] b. a report by the treasurer on the budget[;] c. a report by the house committee on the condition of the firehouse[;] d. reports by other committees . . . . ”

The FOIC concluded that these activities were not operational in nature “and to the extent they [did] not concern fraternal activities, [were] subject fully to the open meetings provisions of the Freedom of Information Act.” The FOIC found, however, that certain other activities were operational and therefore not subject to the open meeting requirement. The commission found that the meeting included “e. [a] discussion of the current radio procedures and returning to a town-wide paging system[;] f. [and a] discussion of social activities.” The FOIC concluded that the discussion of the radio procedures was an operational activity and, therefore, that portion of the meeting was not subject to the open meeting requirement. Finally, the FOIC found that “respondents are not [acting as] public agencies within the meaning of § l-18a (a) when they are performing purely fraternal or social functions,” and thus concluded that the discussion of social activities was not subject to the open meeting provision.

On July 8,1987, the FOIC accepted and adopted the hearing officer’s recommendation and ordered the CCVFC to “allow the public to attend those portions of the meetings in which they undertake those “non-fraternal” activities listed [above],” i.e., the reports on the budget, the condition of the firehouse, and the fires to which the department responded. The plaintiffs appealed this decision to the Superior Court.

The trial court agreed with the FOIC’s conclusion that the CCVFC was a public agency but found that the FOIC had failed to adopt any definitive meaning for the term “operational meeting.” The trial court concluded that “in failing to reveal the criteria it utilized in making its determination, [with respect to which activities on the agenda were ‘operational,’] the FOIC acted arbitrarily.” The trial court sustained the appeal in accordance with General Statutes § 4-183 (g). The FOIC appealed this decision to the Appellate Court and we thereafter transferred the case to ourselves pursuant to Practice Book § 4023.

On appeal the FOIC claims that the trial court erred in interpreting the term “operational” and in sustaining the plaintiffs’ appeal and reversing the FOIC’s decision. We agree.

“Ordinarily, the construction and interpretation of a statute is a question of law for the courts where the administrative decision is not entitled to special deference, particularly where, as here, the statute has not previously been subjected to judicial scrutiny or time-tested agency interpretations. Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, 202 Conn. 583, 599, 522 A.2d 771 (1987) .... Nevertheless, ‘ “judicial review of the conclusions of law reached administratively is also limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.” ’ . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Emphasis in original.) New Haven v. Freedom of Information Commission, 205 Conn. 767, 773-74, 535 A.2d 1297 (1988). Words of a statute “must be construed according to their commonly approved usage. General Statutes § 1-1 (a).” Van Norstrand v. Freedom of Information Commission, 211 Conn. 339, 342-43, 559 A.2d 200 (1989). The term “operational,” although not defined by statute, is commonly understood to mean “[o]f or pertaining to an operation or a series of operations.” American Heritage Dictionary of the English Language. The FOIC found that various reports on the fires responded to, the budget, and the condition of the firehouse directly related to a governmental function and, thus, were not “operational” matters. Therefore, the FOIC concluded, those portions of the meetings were subject to the open meeting requirement of the FOIA. In disputing the accuracy of the FOIC’s interpretation, the trial court supplied its own definition of “operational meeting.” The trial court concluded that “operational meetings are those that deal with the operating or functioning of the fire company, i.e. all meetings at which fire department operations are discussed.”

It is axiomatic that the trial court may not substitute its judgment for that of the agency. See General Statutes § 4-183 (g); State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 717, 546 A.2d 830 (1988); New Haven v. Freedom of Information Commission, supra, 773; C&H Enterprises, Inc. v. Commissioner of Motor Vehicles, 176 Conn. 11, 12, 404 A.2d 864 (1978); DiBenedetto v. Commissioner of Motor Vehicles, 168 Conn. 587, 589, 362 A.2d 840 (1975). In excluding “operational meeting[s]” of volunteer fire departments from the open meeting requirement, the legislature could have provided criteria for determining what activities constituted “operational” activities or it could have otherwise defined the term. It chose to do neither. Thus the FOIC was left to decide whether the facts and circumstances surrounding the plaintiffs meeting gave rise to a conclusion that the meeting, or certain portions of the meeting, were “operational” within the broad meaning of that term. When the legislature uses a broad term, such as “operational meeting[s],” in an administrative context, without attempting to define that term, it evinces a legislative judgment that the agency should define the parameters of that term on a case-by-case basis. See West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 295 A.2d 526 (1972). Thus we cannot agree with the trial court that the FOIC acted arbitrarily in failing to reveal the criteria it used in making its determination.

“The agency’s practical construction of the statute, if reasonable, is ‘high evidence of what the law is.’ Anderson v. Ludgin, [175 Conn. 545, 556-57, 400 A.2d 712 (1978)]; Wilson v. West Haven, 142 Conn. 646, 657, 116 A.2d 420 [1955].” Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 552, 436 A.2d 266 (1980). In Anew of the record as a whole, we conclude that the FOIC acted well within the discretion delegated to it in interpreting the term “operational meeting” and applying that term to the facts before it.

There is error, the judgment is set aside and the case is remanded Avith direction to render judgment dismissing the plaintiff’s appeal.

In this opinion the other justices concurred.

       General Statutes § 1-21 (a) provides in part: “MEETINGS OF GOVERNMENT AGENCIES TO BE PUBLIC. RECORDING OF VOTES. SCHEDULE AND AGENDA OF MEETINGS TO BE FILED. NOTICE OF SPECIAL MEETINGS. EXECUTIVE sessions, (a) The meetings of all public agencies, except executive sessions as defined in subsection (e) of section l-18a, shall be open to the public.”

       General Statutes § l-18a (a) provides in relevant part: “ ‘Public agency’ or ‘agency’ means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency

       See Regs., Conn. State Agencies § l-21j-38.

       General Statutes § 4-183 (g) provides in part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

       On appeal the FOIC agrees that the CCVFC is a public agency and therefore that portion of the trial court’s decision is not in dispute.