author: Shea, J.

text:
    Anthony S. Fichera et al. v. Mine Hill Corporation et al.
    (13292)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued February 3
    decision released April 26, 1988

      Sharon Wicks Dornfeld, for the appellants (defendants).

      Roberta Napolitano, for the appellees (plaintiffs).
   Shea, J.

In this action for damages and other relief based upon the false representations of the defendants, who had formed a joint venture for the development of a recreational real estate subdivision, Hon. Milton J. Herman, a state trial referee acting as the trial court, rendered judgment for the plaintiffs to recover damages of $28,000 and an attorney’s fee of $10,000 on the count of the complaint alleging a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUPTA). The court did not resolve the two remaining counts alleging fraudulent misrepresentations and breach of contract. In their appeal from the judgment, the defendants claim that the court erred (1) in failing to sustain their special defense that the three year CUTPA statute of limitations, General Statutes § 42-110g (f), barred the count on which the judgment had been rendered; and (2) in assessing damages by using an inappropriate methodology and by relying upon insubstantial evidence. We agree with the defendants that the court erred in failing to conclude that § 42-1 lOg (f) precluded the CUTPA count. Accordingly, we do not address the issues relating to damages but remand the case for further proceedings.

The facts essential to the disposition of the appeal are undisputed. In February, 1979, the defendants, Mine Hill Corporation and Danbury Savings and Loan Association, formed a joint venture for the purpose of developing a real estate subdivision known as Scatacook Shores on the Shepaug River in the town of South-bury. The plaintiffs, Anthony and Gladys Fichera, had visited this development in August, 1978, before formation of the joint venture, in response to an advertisement placed in a Bridgeport newspaper by a real estate agent acting on behalf of the defendants. This advertisement offered lots for sale at a “Super Executive area in Southbury” as a private recreational development with “5 private acres of waterfront reserved for your fishing, swimming and boating needs.” A sign, which the plaintiffs had observed when they visited the property in 1978, indicated, in addition to the items mentioned in the newspaper advertisement, that the development would include such features as a recreation area, beach, boat ramp, and community building with dining facilities. The defendants’ sales agents represented to the plaintiffs that a marina, club house, parking area, and town approved road would also be constructed. A brochure given to the plaintiffs contained representations similar to those in the newspaper advertisement and those made by the defendants’ sales agents.

On May 29, 1979, the plaintiffs purchased four lots at Scatacook Shores from the defendants for $168,000. The plaintiff Anthony Fichera testified that at the closing of title the defendants’ attorney had represented that all of the recreational facilities would be completed by May, 1980. He testified also that at some time after that date, through his attorney, he had attempted unsuccessfully to contact the defendants regarding the promised improvements. It was not until a short while after June 16,1981, however, that he learned, from a letter written by the attorneys then representing the defendants to the Southbury planning commission, that the defendants did not intend to construct the community recreation center for which they had obtained a special exception in 1974. In this letter the defendants maintained that the community center was “a separate and distinct project to be undertaken by the homeowners’ association if they decide to do it.” The trial court found that, until the plaintiffs became aware of this letter, they had no “firm indication that the improvements would not be made.”

In rendering judgment for the plaintiffs on the CUTPA count, the court found that the defendants had never intended to build “all of the things contained in the brochure” that had been given to the plaintiffs before they made their purchase, but had “never notified purchasers of lots that the defendants did not intend to complete the development as represented.” Finding also a public nexus based upon the distribution of the brochure to the public and the advertisement in a newspaper, the court concluded that this conduct was a violation of § 42-110b (a) of CUTPA “because it offends public policy and has caused substantial injury to the plaintiffs.”

The only ground upon which the defendants now contend that the judgment of the trial court should be reversed is the failure to sustain their special defense that the CUTPA cause of action is barred by § 42-110g (f), which provides that an action for damages suffered by a person from a prohibited practice “may not be brought more than three years after the occurrence of a violation of this chapter.” This suit was commenced on January 23,1984, when the defendants were served, a date more than three years after May 29,1979, when the plaintiffs had purchased their lots in reliance upon the defendants’ misrepresentations as found by the trial court.

In rejecting the statute of limitations defense, the court relied upon a statement in Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957), that “[wjhen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed.” See Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 241, 429 A.2d 486 (1980). The court concluded that, although the misrepresentations by the defendants had been made in 1978 and 1979, their “course of conduct was not completed until [June] 16, 1981,” when, through their attorneys, they notified the Southbury planning commission that they did not intend to build the community recreation center. Accordingly, the court held that “[s]ince the plaintiffs brought this action in January of 1984, the statute of limitations is not a bar to this action.”

I

To support a finding of a “continuing course of conduct” that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. In Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 13, 459 A.2d 115 (1983), we held that the alleged negligence of a contractor in failing to safeguard a dangerous hole left on the job site after it had completed its work “would not in itself establish that it had a continuing duty to warn of the danger or to safeguard the hole.” We affirmed the summary judgment granted by the trial court in that case because the plaintiff had presented no facts, by affidavit or otherwise, that would reasonably have supported an inference that the duty to protect against the hazard left upon the premises extended for any substantial period beyond the time of the contractor’s departure from the site. Similarly, in Prokolkin v. General Motors Corporation, 170 Conn. 289, 301, 365 A.2d 1180 (1976), we held that the concept of a continuing “duty to warn” of a defect as a basis for a claim of negligence that would toll the statute of limitations was inapplicable to a products liability action claiming strict liability for the sale of a defective product, where the statute runs from the date of sale, “the act or omission complained of.” General Statutes § 52-577.

Where we have upheld a finding that a duty continued to exist after the cessation of the “act or omission” relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act. See Giglio v. Connecticut Light & Power Co., supra, 242 (“repeated instructions and advice given to the plaintiff by the defendant” concerning a furnace it had previously converted and left in a defective condition); Giambozi v. Peters, 127 Conn. 380, 385, 16 A.2d 833 (1940) (“[w]hen . . . injurious consequences arise from a course of treatment [by a physician], the statute does not begin to run until the treatment is terminated”); cf. Handler v. Remington Arms Co., supra (duty to warn of danger of defective cartridge, “an inherently dangerous article,” held to continue in existence until time of injury).

The plaintiffs do not claim any relationship with the defendants that would create a duty continuing after the purchase of the lots other than that based upon the unfulfilled promises to construct various improvements upon the land of the defendants reserved as a recreational area. Such a contractual relationship, however, does not create a fiduciary obligation that might have imposed upon the defendants as the perpetrators of a fraud the continuing duty to disclose their prior lack of candor to the plaintiffs. Nor does the circumstance that the plaintiffs were the victims of deception, as the trial court found, impose such a duty of disclosure on the defendants. We are aware of no authority holding that the perpetrator of a fraud involving merely a vendor-vendee relationship has a legal duty to disclose his deceit after its occurence and that the breach of that duty will toll the statute of limitations. Such a relationship does not give rise to obligations equivalent to those of a fiduciary.

The only subsequent acts of the defendants claimed to be related to the misrepresentations that ceased after the plaintiffs had bought their lots are (1) the continued maintenance of a sign at the entrance of the development advertising “Scatacook Shores” as a “waterfront community,” and (2) the disclosure to the Southbury planning commission by letter of June 16, 1981, that the defendants did not intend to build the proposed community recreation center, but that such a project might be “undertaken by the homeowners’ association if they decide to do it.” The plaintiffs do not claim that the sign in its present form constitutes a misrepresentation or that they in any manner have been misled by its designation of the area as a “waterfront community.” Thus, the sign cannot be regarded as a continuing representation that the defendants would construct any of the recreational facilities that had been indicated by the brochure given to the plaintiffs or promised by the agents of the defendants prior to the purchase of the lots.

The trial court did not find anything wrongful about the June 16, 1981 letter of the defendants, although their disclaimer of any responsibility for building the community center appears to have been contrary to the representations found to have been made by the defendants’ agents that a marina, club house and parking area “were to be constructed.” The court based its finding of a violation of CUTPA wholly upon the representations made by the defendants when they had not intended to fulfill some of them and had failed to inform the purchasers of the lots that the defendants “did not intend to complete the development as represented.” The court regarded as the CUTPA violation, not the disclaimer contained in the letter, but the failure to have informed the plaintiffs and other lot owners before June 16,1981, of this change in plans. Thus the letter was held to warrant a conclusion that the defendants’ course of conduct was not completed until June 16, 1981, because the plaintiffs had not previously “received any firm indication that the improvements would not be made.”

Unlike the statutes of limitation of some other states applicable to unfair trade practices legislation analogous to our CUTPA, which expressly allow a certain period following the discovery of the deceptive practice for commencing suit; e.g., N.C. Gen. Stat. § 1-52 (9) (“the cause of action [for fraud or mistake] shall not be deemed to have accrued until the discovery by the aggrieved party of the facts . . . .”)—applicable to unfair trade practice limitation (N.C. Gen. Stat. § 75-16.2) of four years from accrual of cause of action; Jennings v. Lindsey, 69 N.C. App. 710, 318 S.E.2d 318 (1984); Tex. Business and Commerce Code Annot. § 17.565 (Vernon) (“within two years after the date on which the . . . deceptive act or practice occurred or within two years after the consumer discovered or . . . should have discovered the occurrence . . . ”); § 42-110g (f) provides only that an action must be brought within three years “after the occurrence of a violation of this chapter.” In construing our general tort statute of limitations, General Statutes § 52-577, which allows an action to be brought within three years “from the date of the act or omission complained of,” we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred. Prokolkin v. General Motors Corporation, supra, 294-97. We have reached a similar conclusion in respect to the use of “act or omission complained of” in our personal injury statute of limitations, General Statutes § 52-584, prior to its amendment in 1969 to provide an alternative date for commencement of the limitation period, “two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered.” Public Acts 1969, No. 401, § 2. We have held, prior to the amendment, that even where the wrongful act could not reasonably have been discovered until after the statute had run, any action seeking damages for such an “act or omission” was barred. Kennedy v. Johns-Manville Sales Corporation, 135 Conn. 176, 179-80, 62 A.2d 771 (1948).

We are unable to perceive any significant distinction applicable to this case between the “act or omission” reference, denoting the start of the limitation period in §§ 52-577 and 52-584, and the “occurrence of a violation” phrase in § 42-110g (f), setting the time when the three year period begins for bringing an action alleging a CUTPA violation. Neither the trial court nor the plaintiffs have suggested that this difference in statutory text is of any consequence under the circumstances of this case. The only violations of CUTPA alleged in the complaint are the false representations made by the defendants and their agents prior to the plaintiffs’ purchase of their property in 1979. The complaint does not mention the letter of June 16,1981, nor does it refer specifically to any other action of the defendants occurring after the purchase as a CUTPA violation. The court erred, therefore, in concluding that the statute of limitations had been tolled until June 16, 1981.

II

In their reply to the special defense that the CUTPA count of the complaint was barred by § 42-110g (f), the plaintiffs pleaded facts purporting to show that the defendants had fraudulently concealed from them the existence of their CUTPA cause of action and thus invoked the benefit of General Statutes § 52-595. That statute provides that where fraudulent concealment occurs, “such cause of action shall be deemed to accrue ... at the time when the person entitled to sue thereon first discovers its existence.” The plaintiffs alleged in their reply that the “defendants knew, or should have known, that their continuous series of promises to construct the marina and boating and recreational facilities fraudulently concealed from the plaintiffs the knowledge that they had a cause of action against the defendants”; “that said misrepresentations prevented the plaintiffs from bringing suit”; that the defendants “continued to make said misrepresentations with the intention of preventing the plaintiffs from bringing suit”; and that, “relying on said misrepresentations, the plaintiffs failed to bring suit.”

As we have noted previously, the only evidence of any affirmative conduct of the defendants that occurred after the misrepresentations relating to the purchase of the. lots had been made in 1979 was the continued maintenance of the sign describing the development as a “waterfront community” and the sending of the June 16,1981 letter. We have concluded that the sign did not constitute a misrepresentation and thus it provides no basis for a finding of fraudulent concealment. The letter, since it disclosed the defendants’ actual intention not to build the community center, cannot be regarded as supporting a claim of concealment. Despite their allegations of continuing misrepresentations, the plaintiffs presented no evidence of any other conduct of the defendants relevant to the issue of fraudulent concealment that occurred after the deception that had transpired in 1979, unless mere inactivity in failing to disclose their earlier deception or their changed intentions would constitute fraudulent concealment.

We have held that fraudulent concealment of a cause of action under § 52-595 must, like other frauds, be proved by the more exacting standard of “clear, precise, and unequivocal” evidence. Puro v. Henry, 188 Conn. 301, 308, 449 A.2d 176 (1982); Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982). “To establish that the defendants had fraudulently concealed the existence of their cause of action and so had tolled the statute of limitations, the plaintiffs had the burden of proving that the defendants were aware of the facts necessary to establish this cause of action . . . and that they had intentionally concealed those facts from the plaintiffs.” Bound Brook Assn. v. Norwalk, 198 Conn. 660, 665, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986).

This court has not yet decided whether affirmative acts of concealment are always necessary to satisfy the requirements of § 52-595. Id., 665 n.10. An early formulation of the doctrine of fraudulent concealment declared, in the context of a suit for fraud, that “when the fraud has been concealed, or is of such character as to conceal itself, the statute does not begin to run until the fraud is discovered by, or becomes known to, the party suing.” Bailey v. Glover, 88 U.S. (21 Wall.) 342, 349-50, 22 L. Ed. 636 (1874); see comment, “The Application of the Doctrine of Fraudulent Concealment to Modern Federal Trade Conspiracy Cases,” 14 Conn. L. Rev. 115, 125-34 (1981).

It is at least arguable that the representations made in the brochure concerning recreational facilities when, as found by the trial court, the defendants did not intend to construct all of them, constituted a fraud “of such character as to conceal itself.” Bailey v. Glover, supra. Whether the doctrine of Bailey v. Glover, supra, should be applied to satisfy the fraudulent concealment requirements of § 52-595 in factual settings different from this case, however, we need not now decide. We are convinced that its application here would defeat the legislative intention expressed in § 42-110g (f) to bar actions for CUTPA violations after the lapse of more than three years from their occurrence. Since CUTPA violations are defined in General Statutes § 42-110b to include “deceptive acts or practices in the conduct of any trade or commerce,” it is evident that the legislature intended that the perpetrators of such fraudulent practices, as well as other CUTPA violators, should be permitted to avail themselves of the statute of limitations defense provided by § 42-110g (f). Despite the existence in other states of statutes of limitation applicable to unfair trade practices establishing a limitation period for bringing an action that begins after discovery of the violation, our legislature has failed to create such an option for victims of CUTPA violations in this state. We conclude, therefore, that those who violate CUTPA by committing “deceptive acts,” as the trial court found the defendants to have done, were intended by the legislature to have the same protection that § 42-110g (f) affords to other CUTPA violators, such as those who engage in “unfair methods of competition” and “unfair . . . practices in the conduct of any trade or business.” General Statutes § 42-110b (a).

Our conclusion that the trial court should have found the CUTPA count to have been barred by § 42-1 lOg (f) makes it unnecessary to consider the issue of the methodology used by the trial court in assessing-damages or the sufficiency of the evidence relating thereto. It is uncertain whether the same approach to damages will be taken in further proceedings upon the remaining counts of the complaint for fraud and breach of contract. We do not believe there is any useful purpose in considering the damages issues at this stage of the litigation.

There is error, the judgment on the CUTPA count of the complaint is set aside and the case is remanded with direction to render judgment for the defendants on that count and for further proceedings on the remaining counts of the complaint.

In this opinion the other justices concurred.

       General Statutes § 42-110g (f) provides: “An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.”

       In Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 540, 461 A.2d 1369 (1983), this court held that, because of the directive in General Statutes § 42-110b that interpretations of the Federal Trade Commission Act be looked to as a guide for CUTPA determinations, “allegedly deceptive acts or practices which arise out of a private controversy are actionable only if the acts or practices have a potential effect on the general consuming public,” as the federal courts have declared. See Sportsmen’s Boating Corporation v. Hensley, 192 Conn. 747, 755, 474 A.2d 780 (1984). This public interest requirement for a private action under CUTPA was eliminated by an amendment to General Statutes § 42-110g (a) that became effective on June 8, 1984. Public Acts 1984, No. 84-468, § 2. The amendment does not affect this case, which was pending on its effective date.

       The memorandum of decision erroneously refers to July 16, 1981, as the date on which the plaintiffs learned that the promised recreational facilities would not be built by the defendants. The testimony of the plaintiff Anthony Fichera was, however, that he read the letter to the Southbury planning commission soon after its date, June 16, 1981. Accordingly, we have used June 16, 1981, as the date of discovery of the existence of the CUTPA cause of action, as the plaintiffs have done in their briefs, instead of July 16,1981, as the memorandum of decision states. This discrepancy of one month is without significance in the determination of the issues in this case. It should be noted, however, that the plaintiffs discovered the June 16,1981 letter within three years following their purchase of the lots from the defendants on May 29,1979, and had approximately eleven months remaining for commencement of an action within the period allowed by General Statutes § 42-1 lOg (f).

       The trial court did not find that the plaintiffs had proved a fraudulent concealment of the existence of a cause of action but simply assumed that the failure to disclose the falsity of the representations made in 1979 until the June 16, 1981 letter warranted the conclusion that the earlier course of action was not completed until that date. Since the court acknowledged that General Statutes § 42-1 lOg (f) was not a two tiered unfair practices statute, with an alternative provision for bringing suit within a certain time after discovery of the violation, the implication of the holding is that the court believed that the defendants had a continuous duty to disclose their deception that was not fulfilled until after the plaintiffs learned of the June 16, 1981 letter.

       We note that in trade conspiracy cases, where the existence of the conspiracy is normally kept secret by the conspirators, the federal courts have not applied the self-concealing fraud doctrine of Bailey v. Glover, 88 U.S. (21 Wall.) 342, 22 L. Ed. 636 (1874). In such cases the federal courts have required for tolling the statute of limitations some affirmative misconduct by the defendants designed to prevent discovery. Hall v. E. I. DuPont DeNemours & Co., 312 F. Sup. 358 (E.D.N.Y. 1970); see In re Fertilizer, 1979-2 Trade Cas. ¶ 62, 894 (E.D. Wash. 1979); cf. Crummer Co. v. DuPont, 223 F.2d 238, 248-49 (5th Cir. 1955). “It is in the nature of a conspiracy that there be secrecy; mere nondisclosure or denial of the existence of a conspiracy does not constitute fraud or deceit for tolling purposes. If it did, the tolling exception to the statute of limitation [§ 4, Clayton Act, 15 U.S.C. § 15b] would eclipse the basic statute itself.” Hall v. E. I. DuPont DeNemours & Co., supra, 362.


source: Caselaw Access Project

license: Public Domain

text:
    Teresa B. Blake v. Benson P. Blake
    (13257)
    Peters, C. J., Healey, Shea, Callahan and Hull, Js.

      Argued March 1
    decision released April 26, 1988

      Wesley W. Horton, with whom was Susan M. Cormier, for the appellant (defendant).

      Marilyn Paula Seichter, with whom, on the brief, was Donald J. Cantor, for the appellee (plaintiff).

      Bruce Louden, for the minor children.
   Shea, J.

In this appeal from a judgment dissolving the marriage of the parties, the defendant husband, Benson Blake, claims that the trial court erred: (1) in. permitting the plaintiff wife, Teresa Blake, to move the children to California when he was awarded joint custody of them; (2) in miscalculating the increase in the value of his assets during the marriage; and (3) in abusing its discretion in determining the financial orders concerning child support, alimony and distribution of the marital property. We find no error.

The parties were married in California on February 8, 1975. After briefly living in Massachusetts and Ohio, they lived in California from 1977 to 1983. All three of their children were born in California. The family moved to Avon in 1983. The trial court, Barall, J., rendered final judgment on July 27, 1987, dissolving the marriage of the parties. It awarded “joint custody” of the children, but ordered that the children “reside primarily” with the plaintiff, “who may remove the children to the San Diego area of California to live.” The court granted liberal visitation rights to the defendant.

The principal financial orders were as follows: (1) the plaintiff was ordered to convey her interest in the family home in Avon to the defendant; (2) the defendant was directed to convey his interest in a lot in California to the plaintiff; (3) the plaintiff was awarded $1,200,000 as an additional share of the marital assets; (4) the defendant was directed to pay the plaintiff periodic alimony of $50,000 a year, only 50 percent of this award to be tax deductible by the defendant; and (5) the defendant was ordered to pay the plaintiff $200 per week for each of the three children as child support.

I

The defendant claims that the trial court erred in permitting the plaintiff to move the children to California even though he has joint custody of them. First, he argues that the court should have required the plaintiff to demonstrate a compelling reason to justify relocating the children to an area far from their present home, where he lives. Second, in the alternative, he contends that the court abused its discretion in permitting the plaintiff to remove the children to California.

A

The defendant maintains that there should be a presumption that moving a child far away from one joint custodial parent is not in “the best interests of the child”; General Statutes § 46b-56 (a) and (b); because such a relocation interferes with a primary goal of joint custody, “a sharing of continued contact with both parents.” Emerick v. Emerick, 5 Conn. App. 649, 656, 502 A.2d 933 (1985), cert. dismissed, 200 Conn. 804, 510 A.2d 192 (1986). He relies on a series of New York cases for the principle that a joint custodial parent seeking to move children far away from the other joint custodial parent must demonstrate a compelling reason to justify the removal. Weiss v. Weiss, 52 N.Y.2d 170, 172, 418 N.E.2d 377, 436 N.Y.S.2d 862 (1981); Daghir v. Daghir, 82 App. Div. 2d 191, 192, 441 N.Y.S.2d 492 (1981), aff'd, 56 N.Y.2d 938, 940, 439 N.E.2d 324, 453 N.Y.S.2d 609 (1982); Barie v. Faulkner, 115 App. Div. 2d 1003, 497 N.Y.S.2d 650 (1985); Bryan v. Bryan, 99 App. Div. 2d 743, 471 N.Y.S.2d 650 (1984); McLarney v. McLarney, 96 App. Div. 2d 580, 465 N.Y.S.2d 274 (1983); Courten v. Courten, 92 App. Div. 2d 579, 580, 459 N.Y.S.2d 464 (1983); see also Sydnes v. Sydnes, 388 N.W.2d 3, 5-6 (Minn. App. 1986); McAlister v. Patterson, 278 S.C. 481, 482, 299 S.E.2d 322 (1982).

All of the cases cited by the defendant, however, involved a parent who sought a postjudgment modification of a joint custody decree and a substantial alteration of the other parent’s visitation rights in order to relocate the children far away from where the original decree permitted them to live. Weiss v. Weiss, supra; Daghir v. Daghir, supra; Barie v. Faulkner, supra; Bryan v. Bryan, supra; McLarney v. McLarney, supra; Courten v. Courten, supra; Sydnes v. Sydnes, supra; McAlister v. Patterson, supra. In all of these cases the original judgment had contemplated that the parent with whom the child lived would reside within the same geographic area as the other parent. We have held that the burden of proving that a modification of custody is in the best interests of the child rests with the party seeking a modification. Cookson v. Cookson, 201 Conn. 229, 233-41, 514 A.2d 323 (1986). In the case at bar, however, we are not concerned with the modification of a previous judicial determination involving the place of the child’s residence but with the initial resolution of the residence issue in the dissolution decree, which declared that the parent residing with the children may move them to California. We conclude that the postjudgment modification cases cited by the defendant are inapplicable to the present case.

The defendant also argues that a trial court may not allow a parent to relocate a minor child to a distant place when it also awards joint physical custody of the child to both parents. In the dissolution decree, the court ordered “joint custody of the children [Adam, Cooper and Morgan,] who shall reside primarily with the plaintiff mother, who may remove the children to the San Diego area of California to live.” The defendant contends that the court’s determination that the plaintiff may move the children to California is inconsistent with General Statutes § 46b-56a (a), which provides: “For the purposes of this section, ‘joint custody’ means an order awarding legal custody of the minor child to both parents, providing for joint decision-making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents.” The defendant maintains that the court’s determination to award joint custody necessarily implied under § 46b-56a (a) that he maintain joint physical custody of the children, and that the court’s relocation determination is legally erroneous in view of the statute’s requirement “that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents.” General Statutes § 46b-56a (a).

Section 46b-56a (a) also provides, however, that “[t]he court may award joint legal custody without awarding joint physical custody where the parents have agreed to merely joint legal custody.” The plaintiff in her proposed orders had requested that “[t]he parties shall have joint custody of their three minor children with the children to reside primarily with mother; that mother be allowed to remove the children with her to her proposed residence in California.” Her proposed orders clearly implied that she agreed to joint legal custody, but not to joint physical custody. The defendant had proposed that “[t]he plaintiff and defendant should have joint legal and [physical] custody of the minor children.” His proposal clearly implied that he sought joint physical, custody only on the condition that the plaintiff and children remain in the general vicinity of Avon. “The defendant will continue to reside in the family home located . . . [in] Avon, Connecticut. Hopefully, the plaintiff will take up residence in a location which will permit the parties to share physical custody of the children on a more or less equal basis.”

Both parents agreed upon joint legal custody, but they disagreed about whether the defendant should have joint physical custody. Under these circumstances, § 46b-56a (a) permits a court to award joint legal custody, but to award physical custody to one parent. The term “joint custody” used in the judgment in the present case implies that the court awarded joint legal custody, but its specific provisions concerning removal of the children by the plaintiff and visitation by the defendant make it clear that primary physical custody has been awarded to the plaintiff. We hold that a court under § 46b-56a (a) may award joint legal custody, when both parents agree, but at the same time deny joint physical custody, when both parents have not agreed to such an award, provided that the court finds that such an award is appropriate under § 46b-56a (b).

B

The defendant also claims that the trial court abused its discretion in permitting the plaintiff to move the children to California. He contends that this decision was clearly erroneous in view of the fact that, when each of the children was asked whether he wished to move to California, each replied that he wanted to remain in Avon. The counsel appointed by the court to represent the childen believed that they should stay in Connecticut. The trial court found, however, that the defendant had coerced the children into opposing a move to California by convincing them “that they were going to lose their father.” In light of this finding, the court did not abuse its discretion by refusing to accept as dispositive the testimony of children of five, seven and nine years of age. Nor was the court bound by the opinion of the children’s counsel, despite the valuable function served by such counsel in custody hearings.

The defendant also contends that the trial court abused its discretion by relying upon the opinions of Walter Borden, a psychiatrist who was the custody evaluator chosen by both parents, and of Lawrence Beaudry, a family relations officer. He points out that the opinion of Borden was based primarily on information collected about one year before the court ruled and that the opinion of Beaudry was based on an investigation conducted from eight and one-half to sixteen months before the court ruled. In O’Neill v. O’Neill, 13 Conn. App. 300, 302-304, 536 A.2d 978 (1988), the Appellate Court recently ordered a new hearing concerning a custody award, where the trial court had relied on a family relations officer’s report that was thirteen months old at the time of its introduction into evidence, on the ground that it was not probative of “the present best interests of the child” at the time of the custody determination. (Emphasis added.) Id., 303. In making a determination of custody, this court also has concluded that the trial court is “bound to consider the child’s present best interests and not what would have been in her best interests at some previous time.” (Emphasis in original.) In re Juvenile Appeal (Anonymous), 177 Conn. 648, 664, 420 A.2d 875 (1979). We have declared, nevertheless, that “the court must. . . take account of the parents’ past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the children’s growth, development and well-being.” Yontef v. Yontef 185 Conn. 275, 283, 440 A.2d 899 (1981).

The defendant does not challenge the qualifications of either Borden or Beaudry as expert witnesses in this case. The delay between their examination of each child and their testimony at the custody hearing simply affects the weight of their testimony rather than its admissibility. See Hally v. Hospital of St. Raphael, 162 Conn. 352, 358-59, 294 A.2d 305 (1972). Our standard of review in domestic relations cases is a very narrow one. We will not reverse a trial court’s rulings with regard to custody and financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did. Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985). The defendant had a full opportunity at the custody hearing to point out any deficiencies concerning Borden’s or Beaudry’s examination of the children, and has failed to demonstrate any substantial prejudice as a result of the delay between the time Borden or Beaudry interviewed each child and when custody was determined. We conclude that the trial court did not abuse its discretion in considering the testimony of Borden and Beaudry in making its custody determination. “It is . . . within the court’s province to determine the credence to be given the expert’s testimony and to properly weigh it in relation to the other circumstances in evidence bearing on the question in issue.” Bond v. Benning, 175 Conn. 308, 313, 398 A.2d 1158 (1978).

The defendant also contends that Borden’s examination of the children was cursory, and, therefore, that the trial court abused its discretion by relying upon this psychiatrist’s testimony. Borden conducted an individual interview of the youngest child for only fifteen minutes, of the oldest child for forty-five minutes, and of the middle child for one hour. He saw them about one year before the trial, he never saw them with their parents, though he had conferred with each parent, and he never administered any psychological tests. The defendant further argues that Beaudry’s testimony was “flawed.” He claims that Beaudry should not have relied on certain negative comments made by Borden concerning the defendant’s psychological outlook. He also maintains that Beaudry’s conclusions concerning him are flawed because Beaudry relied on a remark allegedly made by Irving Frank, the parties’ marriage counselor, that the plaintiff “was the more devoted and giving parent.” In a deposition admitted into evidence, Frank denied that he had made this comment to Beaudry.

The defendant had an opportunity at the custody hearing to challenge the conclusions of Borden and Beaudry, who both testified in favor of allowing the plaintiff to move the children to California, as well as to produce other evidence significant to the custody decision. “Because the trial court must take into account both subjective and objective evidence of the causes of the breakdown of a marriage and of the various factors that go into a determination of the best interests of the children upon the dissolution of their parents’ marriage; General Statutes §§ 46b-56 (b), 46b-81 and 46b-82; our review of trial court determinations is perforce limited . . . . It is a rare case in which a disappointed litigant will be able to demonstrate abuse of a trial court’s broad discretion in family matters.” Yontef v. Yontef, supra, 278-79. The defendant does not challenge the trial court’s determination that the plaintiff should be the primary caretaker of the children. In his brief he concedes that “the plaintiff could be primary caretaker in Connecticut.” He contends, however, that the trial court abused its discretion by permitting the plaintiff to move to California when she “offered no reason other than the desire to be with her family” in California. The trial court did not abuse its discretion in concluding that the best interests of the children would be promoted by allowing the plaintiff to live near her family in California, where all of the children had been born and had lived until 1983, and by providing liberal rights of visitation to the defendant, whose financial resources were ample to enable him to exercise them.

II

The defendant argues that the court erred when it determined that there was a $2,600,000 increase in the value of his assets during the marriage. On cross-examination, the defendant testified that he was worth $4,600,000 in 1979, and that his assets at the time of the hearing were valued at approximately $7,200,000, an increase of about $2,600,000. The defendant now contends that 1975, the time when the parties married, rather than 1979, was the proper starting point for measuring the increase in the value of his property during the marriage. He also maintains that it was improper to measure the value of the assets in 1979 after he had paid $2,000,000 in taxes that had resulted from a sale of stock. He argues that his assets were worth $6,758,346 in 1979 before he sold a substantial block of stock, and was subjected to capital gains taxation.

The defendant failed during the trial to submit any information concerning his net worth in 1975 after the plaintiff had introduced their 1979 and 1980 joint tax returns as a basis for computing the financial awards. He admitted on cross-examination that there had been a $2,600,000 increase in the value of his assets. In view of the defendant’s own admissions on cross-examination concerning the increase in the value of the assets during the marriage, we conclude that the trial court did not err in finding an increase of $2,600,000 for the purpose of a property division pursuant to General Statutes § 46b-81.

III

We must now review the financial orders in this case to determine whether there was an abuse of discretion, aside from the defendant’s claim that the trial court erred in calculating the increase in the value of his assets during the marriage. In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. Charpentier v. Charpentier, 206 Conn. 150, 154-55, 536 A.2d 948 (1988).

The defendant contends that the trial court abused its discretion to assign property of either spouse to the other under § 46b-81 by awarding the plaintiff $1,200,000, as well as a lot in California, which had an undisputed value of $375,000. He also contends that the totality of the financial orders, including $50,000 per year in alimony, awarded pursuant to General Statutes § 46b-82, and $200 per week for each minor child, awarded pursuant to General Statutes § 46b-84 (b), was an abuse of discretion. It is evident, however, that his primary argument is that the court erroneously applied the criteria set forth in § 46b-81 concerning the assignment of marital property. The defendant argues that the court did not properly apply the requirement of § 46b-81 that it consider “the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.” It is undisputed that the plaintiff brought only $10,000 into the marriage, that she did not engage in any significant employment during the marriage, and that she did not participate in the defendant’s investment decisions. He maintains that there is no evidence that the plaintiff had anything to do with the “acquisition, .preservation or appreciation” of his estate, which the court found to have increased in value by $2,600,000 from 1979 to 1987.

In O’Neill v. O’Neill, supra, 312, the Appellate Court held “that a determination of each spouse’s ‘contribution’ within the meaning of General Statutes § 46b-81 includes nonmonetary as well as monetary contributions.” In articulating its rationale, the court stated: “A property division ought to accord value to those nonmonetary contributions of one spouse which enable the other spouse to devote substantial effort to paid employment which, in turn, enables the family to acquiré tangible marital assets. The investment of human capital in homemaking has worth and should be evaluated in a properly division incident to a dissolution of marriage. We hold, accordingly, that an equitable distribution of property should take into consideration the plaintiffs contributions to the marriage, including homemaking activities and primary caretaking responsibilities.” Id., 311.

The defendant argues that this court should overrule the holding of O’Neill v. O’Neill, supra, in this regard. He points out that, in 1978, Substitute House Bill No. 5084 proposed amending § 46b-81 (c) to add the requirement that in assigning property that the trial court shall consider “the contribution of the spouse as a homemaker to the family unit.” That bill was passed in the House; 21 H.R. Proc., Pt. 3,1978 Sess., pp. 1196-1209; but died in the Senate Judiciary Committee. Journal of Senate, April 6,1978, p. 612. He also maintains that there is nothing in the legislative history of Public Acts 1973, No. 73-373, § 20, now codified as § 46b-81 (c), to indicate that the legislature intended to include the non-monetary contributions of a spouse in homemaking and raising children as a factor in determining the division of marital assets. 16 H.R. Proc., Pts. 4, 7, 12, 1973 Sess., pp. 1461-94, 1928-94, 3048-62, 5914-23; 16 S. Proc., Pts. 3, 7, 1973 Sess., pp. 1389-91, 1406-21, 3254-58.

The Appellate Court in O’Neill v. O’Neill, supra, 309, acknowledged that “the legislative history [of § 46b-81 (c)] does not reveal any attempt to define the word ‘contribution.’ ” It concluded, however, that “there were comments [in the statute’s legislative history] indicating an intent to require a court to take into consideration all relevant factors necessary to make a fair determination concerning alimony and property settlements.” Id., 310. It held that the nonmonetary contribution of a spouse was one such factor. Id., 310-12.

We need not decide whether “the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates” includes nonmonetary contributions. Sections 46b-81 (c), 46b-82 and 46b-84 (b) all require that the trial court consider the “station” of each spouse. The most pertinent definition of “station” in Webster, Third New International Dictionary, is “social standing.” A person’s social standing is strongly correlated to his standard of living, although other factors may be important as well. Our courts have frequently considered the standard of living enjoyed by spouses in determining alimony or in dividing marital property. Whitney v. Whitney, 171 Conn. 23, 27-29, 368 A.2d 96 (1976); Tobey v. Tobey, 165 Conn. 742, 747-49, 345 A.2d 21 (1974); Stoner v. Stoner, 163 Conn. 345, 350, 307 A.2d 146 (1972); Morris v. Morris, 132 Conn. 188, 191-94, 43 A.2d 463 (1945). “We cannot hold that the trial court, taking into consideration as it did the financial circumstances and standard of living of the parties, abused its discretion in ordering payments in the amount stated.” Morris v. Morris, supra, 193-94. Our courts have also considered the parties’ standard of living in determining child support payments. Burke v. Burke, 137 Conn. 74, 76-81, 75 A.2d 42 (1950); Morris v. Morris, supra.

In determining the assignment of marital property under § 46b-81 or alimony under § 46b-82, a trial court must weigh the “station” or standard of living of the parties in light of other statutory factors such as the length of the marriage, employability, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. Which spouse has primary physical custody of minor children is also a consideration in determining the division of marital assets. Charpentier v. Charpentier, supra, 154-56. The parties enjoyed a very high standard of living during their marriage. There is no question concerning the defendant’s present and future ability to meet these financial orders, or to acquire capital assets and income. The marriage lasted twelve years. The trial court was clearly concerned that the children should be able to enjoy the same standard of living in California as they had in Avon. It indicated that it awarded the lot and $1,200,000 to the plaintiff to enable her to build a home in California comparable to the $675,000 family home in Avon. In view of the parties’ standard of living, the length of the marriage, and the needs of the children, we conclude that the trial court did not abuse its discretion in its awards of marital assets, alimony and child support.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 46b-56. (Formerly Sec. 46-42). superior court ORDERS RE CUSTODY AND CARE OF MINOR CHILDREN IN ACTIONS FOR DISSOLUTION OF MARRIAGE, LEGAL SEPARATION AND ANNULMENT. ACCESS TO RECORDS OF MINOR children by noncustodial parent, (a) In any controversy before the superior court as to the custody or care of minor children, and at any time after the return day of any complaint under section 46b-45, the court may at any time make or modify any proper order regarding the education and support of the children and of care, custody and visitation if it has jurisdiction under the provisions of chapter 815o. Subject to the provisions of section 46b-56a, the court may assign the custody of any child to the parents jointly, to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable. The court may also make any order granting the right of visitation of any child to a third party including but not limited to grandparents.
      “(b) In making or modifying any order with respect to custody or visitation, the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if he is of sufficient age and capable of forming an intelligent preference, provided in making the initial order the court may take into consideration the causes for dissolution of the marriage or legal separation if such causes are relevant in a determination of the best interests of the child.”

       “[General Statutes] Sec. 46b-56a. joint custody, definition, presumption. conciliation. . . .
      “(b) There shall be a presumption, affecting the burden of proof, that joint custody is in the best interests of a minor child where the parents have agreed to an award of joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child or children of the marriage. If the court declines to enter an order awarding joint custody pursuant to this subsection, the court shall state in its decision the reasons for denial of an award of joint custody.”

       The defendant testified on cross-examination as follows:
      “Q. And that would leave you then with a net residue after taxes of about four million six hundred thousand dollars ($4,600,000) as a result of the sale to Hershey.
      “A. Okay. . . .
      “Q. And, so, if your total assets today including those two are about seven million two hundred thousand, would you agree with me that your estate has increased since your inheritance was liquidated to the amount of approximately two million six hundred thousand dollars?
      “A. If you consider the net of the tax and so forth, well, let me think about that. I think what you’re driving at is basically correct.
      “Q. All right. And that increase took place during the time that you and your wife were living together, did it not?
      “A. Yes. Well, I mean, no. Well, yes, we’re still living together today.”

       See footnote 3, supra.

       “[General Statutes] Sec. 46b-81. (Formerly Sec. 46-51). assignment OF property and transfer of title, (a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.
      “(b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties.
      “(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       See footnote 5, supra.

       “[General Statutes] Sec. 46b-82. (Formerly Sec. 46-52). alimony. At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       “[General Statutes] Sec. 46b-84. (Formerly Sec. 46-57). parents’ obligation FOR MAINTENANCE OF MINOR CHILD. ORDER FOR HEALTH INSURANCE COVERAGE. . . .
      “(b) In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.”

       See footnote 5, supra.

       See footnote 7, supra.

       See footnote 8, supra.


author: Callahan, J.

text:
    State of Connecticut v. Theodore McClary
    (13036)
    Healey, Shea, Callahan, Covello and Santaniello, Js.

      Argued December 10, 1987
    decision released April 26, 1988

      Louis S. Avitabile, special public defender, with whom were Joshua R. Kricker, special public defender, and, on the brief, Denise Dishongh, special public defender, for the appellant (defendant).

      Marcia B. Smith, assistant state’s attorney, with whom, on the brief, was John A. Connelly, state’s attorney, for the appellee (state).
   Callahan, J.

The defendant was charged in a substitute information with one count of risk of injury to a child in violation of General Statutes § 53-21 and one count of assault in the first degree in violation of General Statutes § 53a-59. Both counts arose out of the same incident that allegedly occurred on February 11, 1985, in Waterbury. The charges were tried to the court and the defendant was found not guilty of assault in the first degree but guilty of risk of injury to a child. He was sentenced by the trial court to serve a term of imprisonment of seven years.

The information against the defendant was brought as a result of an investigation into the cause of a severe brain injury suffered by Jennifer Lovette, the six month old daughter of the defendant and Janice Lovette, with whom the defendant intermittently resided. The injury was devastating and resulted in irreversible dysfunction of the brain and neurological systems of the child. At trial the state offered evidence to prove that the injury was caused by a severe, violent shaking administered while the child was in the temporary care of the defendant. The defendant has raised several issues on appeal that may be encapsulated into the single issue of whether the state presented sufficient, reliable evidence to enable the trial court to find the defendant guilty beyond a reasonable doubt. The defendant’s principal claim is that the perceived reliance of the trial court on the so-called “shaken baby syndrome” to prove the mode of the injury to the child and the defendant’s culpability in inflicting that injury was erroneous.

The trial court could reasonably have found the following facts and credited the following opinions. On the morning of February 11,1985, the child, Jennifer, ate breakfast, played with her stuffed animals, was given a bath, and then was dressed by her mother. During that period of time the baby appeared normal and alert. Later, in the early afternoon, the child’s mother, when preparing to leave her apartment for a short time, asked the defendant to put the baby to sleep. At that time the defendant was seated on the couch playing with the child. When the mother returned to the apartment some fifteen minutes later, the baby was asleep on the couch. At that time the mother asked the defendant to put the infant into her crib. When the defendant picked the baby up to do so, the baby’s arm was limp and she was moaning. After the baby was placed in her crib, the child’s mother again left her apartment, leaving the infant with the defendant. While in her crib the baby continued to moan in her sleep. A short time later, while a friend of the mother was visiting at the apartment, the defendant noticed that the baby was rolling her eyes and foaming at the mouth. Leaving the mother’s friend with the baby, the defendant ran to seek the assistance of Janice Lovette’s father, Theodus Lovette, who lived in the area. The elder Lovette returned to his daughter’s apartment and drove the defendant and the baby to the Waterbury Hospital emergency room where they arrived at approximately 4:45 p.m. Theodus Lovette testified that at the time the defendant entered his automobile with the baby, he observed that something was wrong. He testified that the baby appeared as though she had “collapsed or something.”

The baby was examined first at Waterbury Hospital by an emergency room physician and then, between 6 and 7 p.m., by Stuart Gardner, a pediatrician. She was thereafter examined by Victoriano Baldovi, the baby’s regular pediatrician, who had treated her for various ailments and dietary problems since her premature birth six months earlier. The baby was also later examined by Roger Bobowick, a neurologist. All three physicians diagnosed the baby as having subarachnoid hemorrhaging and extensive retinal hemorrhaging.

Gardner testified that in his mind there was no doubt that the injury to the baby was caused by a violent shaking, probably within the previous twelve hours. Baldovi testified that the most probable cause of the trauma to the child was something violent, such as “a severe shaking, like shaking of the baby.” Baldovi also testified that none of the problems for which he had previously treated the infant would account for her condition that evening. Bobowick examined the child very briefly and in his testimony for the defense did not venture any opinion as to the cause of the child’s condition.

In view of the serious, life-threatening nature of the baby’s injuries, a decision was made to transfer her from the Waterbury Hospital to Hartford Hospital where more sophisticated diagnostic equipment and pediatric facilities were available. Consequently, in the early morning hours of February 12, the baby was transported to the Hartford Hospital pediatric care unit where, between 3 and 4 a.m., she was examined by Carolyn Riegle, a pediatrician and a specialist in pediatric intensive care. In her report, Riegle noted a bulging fontanel in the child’s head caused by bleeding and also noted hemorrhaging of the eyes. She concluded that “the combination of retinal hemorrhage and subarachnoid blood is indicative of a shaking injury.”

The child was also seen in Hartford Hospital on February 12 by Carol Leicher, a pediatric neurologist. Leicher observed that the baby had a cortical fist and a spontaneous extension of the left toe which were indicative of a brain injury affecting the motor system. She also observed multiple hemorrhages of the eyes which were indicative of trauma “most likely of the whiplash or shaken baby type.” Leicher also noted bleeding in the subarachnoid space.

At trial Reigle testified that the symptoms she noted in her examination were secondary to a shaking injury and could not have been caused by a seizure or convulsion, natural causes or any medical problems which the child previously possessed. She opined that the combination of retinal and subarachnoid hemorrhages that she observed in the infant could only have been caused by a shaking injury which occurred within twenty-four hours before the child was admitted to Waterbury Hospital on February 11. She also stated that the child would not have been normally awake and alert after the infliction of such an injury and that the change should have been noticeable to anyone familiar with the child.

Leicher testified at the trial that something acute happened to the child and that her injuries could not have come from natural causes or anything noted in her previous medical history. She also testified that there was no evidence of exterior trauma to the child’s face or head and that the traumatic brain injury and the symptoms she noted were consistent with, and could only have resulted from, a severe shaking. Further, Leicher testified that, in her opinion, while the person responsible for the child’s injuries might not have known they were producing brain damage by the shaking, they had to know they were causing discomfort to the child.

Another physician, Paul Mitchell, a pediatric ophthalmologist, saw Jennifer for the first time on February 15. At that time, he testified, he noted fresh hemorrhages in the retina of her eyes which resulted from trauma within or to the brain. He stated that the extent of the hemorrhages which he saw usually occur after a severe shaking of a child and are called “whiplash shaking syndrome.” He had no doubt that the child’s injuries were caused by shaking. He also testified that the injuries he observed could not have been the result of a casual, playful shaking but would require a vigorous, violent shaking. He testified further that, in his opinion, after the infliction of such an injury a child would not appear alert and playful and would not have taken food normally. He stated that Jennifer is now totally blind and will never recover her vision.

Kurt Myers, a pediatrician who first saw Jennifer on March 29, 1985, and was her treating pediatrician at the time of trial, also testified. He stated that Jennifer was a severely, neurologically disabled child who was blind and was required to be fed by a gastrostomy tube. Myers indicated there was very little hope for improvement and that the child in all probability would always be bedridden. He testified that the child had evidence of retinal and subarachnoid hemorrhaging and severe cerebral bruises which, in his opinion, could not have resulted from natural causes, a fall or anything in the baby’s medical history. He stated that what he observed “would be a shaking kind of injury.”

The defendant took the stand in his own defense and testified that he never played violently with the baby nor shook her violently. He denied categorically that he had done anything on February 11 to injure the baby. Two acquaintances of the defendant also testified that the defendant was a “peaceful person” with children. Janice Lovette testified that she had never seen the defendant violent or upset with her children.

At the conclusion of the trial the defendant filed a motion for a judgment of acquittal, a motion in arrest of judgment and a motion for a new trial, all of which were denied. This appeal followed.

The defendant first argues that the evidence was insufficient to allow the trial court to find that there was a shaking of the child with the requisite “general intent or knowledge that the act was likely to impair the health of a minor.” The defendant misperceives the nature of the general intent required to convict him of doing an act likely to impair the health of a child, the provision of § 53-21 of which he was found guilty. It was not necessary for a conviction under that provision for the trial court to find any intent to injure the child or impair its health. All that was required was the general intent on the part of the defendant to perform the act which resulted in the injury, that is, that the bodily movement which resulted in the injury was volitional. State v. Pierson, 201 Conn. 211, 216-17, 514 A.2d 724 (1986); State v. Martin, 189 Conn. 1, 12-13, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983); State v. Perez, 181 Conn. 299, 315-16, 435 A.2d 334 (1980); State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963).

“ ‘When the elements of a crime consist of a description of a particular act and a mental element not specific in nature, the only issue is whether the defendant intended to do the proscribed act. If he did so intend, he has the requisite general intent for culpability. When the elements of a crime include a defendant’s intent to achieve some result additional to the act, the additional language distinguishes the crime from those of general intent and makes it one requiring a specific intent.’ ” State v. Shine, 193 Conn. 632, 638, 479 A.2d 218 (1984), quoting State v. Bitting, 162 Conn. 1, 5, 291 A.2d 240 (1971); State v. Pascucci, 164 Conn. 69, 74, 316 A.2d 750 (1972); State v. Husser, 161 Conn. 513, 515, 290 A.2d 336 (1971); 21 Am. Jur. 2d, Criminal Law §§89 through 91. Here there was no language in the portion of the statute under which the defendant was convicted that required, as an element of the crime, the intent by the defendant to achieve some result additional to the act. We conclude that there is no merit to the defendant’s initial claim.

The defendant next claims that the only purpose of medical testimony is to “explain the possible meaning of facts already in existence to the trier of fact and not to create facts that do not already exist in the case.” By this, the defendant appears to argue that the opinions elicited from the physician witnesses could not be used to establish that the victim’s injuries were caused by a violent shaking. We disagree. On the foundation laid as to the expertise of the physician witnesses, the trial court did not err in concluding that they were competent to express an opinion as to the cause of the baby’s injuries. “It has long been our rule that ‘the qualification of an expert witness is within the discretion of the trial court and its decision will not be disturbed on appeal unless that discretion is abused . . . . ’ State v. Wilson, 180 Conn. 481, 489-90, 429 A.2d 931 (1980); Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973); Coffin v. Laskau, 89 Conn. 325, 329, 94 A. 370 (1915).” State v. Ortiz, 198 Conn. 220, 228, 502 A.2d 400 (1985). Further, “[a]n expert medical witness may give his opinion as to the means used to inflict a particular injury, based on his deduction from the appearance of the injury itself.” People v. Jackson, 18 Cal. App. 3d 504, 507, 95 Cal. Rptr. 919 (1971). “Such testimony is not accusatory, but only indicates the cause of [the injury].” State v. Tanner, 675 P.2d 539, 542 (Utah 1983). Also, “evidence of the cause ... or more broadly, of the medical effect upon the human system of the infliction of injuries, is generally not within the sphere of the common knowledge of a lay witness” and requires expert testimony. Collette v. Collette, 177 Conn. 465, 471, 418 A.2d 891 (1979); Sickmund v. Connecticut Co., 122 Conn. 375, 379, 189 A.2d 876 (1937). The expert opinion evidence did not “create facts”; rather, it was correctly and necessarily admitted to explain the full extent and cause of the victim’s obvious injuries. State v. Tanner, supra, 543. There is no merit to this claim.

Next, citing Moore v. McNamara, 201 Conn. 16, 32-33, 513 A.2d 660 (1986), the defendant contends that “the opinion of each doctor that the injuries resulted from a violent act by someone who had the baby in his or her custody within 12-24 hours before she was brought to the hospital, and must have known that he was hurting the victim assumes the existence of an act and the mental state of the alleged perpetrator.” (Emphasis added.) He claims, therefore, that the trial court erred by finding “the existence of the act and the requisite mental state of knowledge solely from the opinion of the doctors.” We find this argument of the defendant difficult to understand. It is manifest that the experts merely stated their medical opinions as to how and approximately when the injury to the child occurred. The opinions expressed by the medical witnesses were well within the ambit of their field of expertise. A medical expert who is qualified to render an opinion as to the cause of an injury may do so as long as the opinion is stated with a reasonable degree of medical probability. Healy v. White, 173 Conn. 438, 443-46, 378 A.2d 540 (1977); 31 Am. Jur. 2d, Expert and Opinion Evidence § 44. That is all that the physicians in this case appear to have done. Although none of the experts who had expressed an opinion seemed to have had any doubt that the victim’s injuries were caused by a severe shaking, it does not appear anywhere in the record that they “assumed” any act or mental state of the defendant.

Moreover, the only medical testimony remotely related to state of mind was that of Leicher, who testified that anyone who shook the baby to the extent indicated by the injuries would have had to have known that they were causing the child discomfort. There is no indication, however, that she “assumed” the shaking of the child or the mental state of whoever shook her. Rather she was expressing her opinion as to the cause of the victim’s injury and the force required to inflict it. The trial court did not err in allowing and, if it saw fit, crediting that opinion. Healy v. White, supra, 445; People v. Jackson, supra, 507; State v. Tanner, supra, 543.

The defendant also claims that the trial court erred because it relied “solely” on the medical evidence to find the existence of the “criminal act” and the “mental state necessary” to constitute the elements of the crime of risk of injury to a child. If by “criminal act” the defendant means the cause of the injury to the child, we agree that it was established solely by expert medical testimony. We do not see that as error, however. The causation of an injury such as that suffered by the infant in this case is an esoteric subject which obviously would require expert medical testimony to prove. Jaffe v. State Department of Health, 135 Conn. 339, 349, 64 A.2d 330 (1949); Sickmund v. Connecticut Co., supra, 379. There is no rule of law or evidence which prevents the trier of the facts from utilizing expert medical testimony to establish the cause of an injury. Cf. Budney v. Zalot, 168 Conn. 388, 389, 362 A.2d 861 (1975); Boland v. Vanderbilt, 140 Conn. 520, 524, 102 A.2d 362 (1953); People v. Jackson, supra.

If by “criminal act” the defendant means the culpability of the defendant for the injury to the child, we disagree that it was established “solely” by medical evidence. There was significant testimony by the child’s mother concerning the alert, normal condition of the baby prior to being left with the defendant. The child’s mother and the defendant also testified that the defendant was the only person with access to the child at the critical time she apparently suffered her catastrophic injury. Though the trial court found, from the medical testimony, that a severe shaking caused the baby’s injuries, that testimony would have been for naught without the lay testimony concerning the prior condition of the child and the defendant’s exclusive access to the child during what, the trial court could have found, was the crucial period when she suffered her injuries. See State v. Tucker, 181 Conn. 406, 418-19, 435 A.2d 986 (1980).

The defendant further argues that the trial court improperly relied solely upon medical testimony to establish “the mental state required” for the commission of the crime, apparently again referring to the medical testimony elicited which indicated that the person who caused the injury to the child would have had to have known he or she was causing the child discomfort. Even if that testimony could be construed as referring to state of mind, such knowledge or mental state is not an element of the crime required to establish guilt. For a conviction the trial court had to find proven beyond a reasonable doubt only that the defendant, by a volitional act, shook the child and caused the injury. There was ample medical testimony, other than that just referred to, which established the cause of injury as a vigorous or violent shaking and the trial court could have relied on that evidence to find that the shaking was done intentionally and not accidentally. We find no merit to this claim of the defendant.

The defendant next argues that the diagnosis of the victim’s injuries in this case as “shaken baby syndrome,” because of the constellation of symptoms she exhibited, is not a medically accepted diagnosis that rules out accidental injuries or natural causes. We assume his claim is that the trial court should not have relied on the expert medical testimony as to this diagnosis in concluding that the victim’s injuries were caused by a violent shaking. We disagree.

A diagnosis of the victim’s injuries and a determination of their cause from simply a knowledge of her symptoms and the results of the various tests and examinations she underwent is manifestly beyond the ken of the average trier of fact, be it judge or jury. See Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973); Van Detti v. Parsons Bros., Inc., 146 Conn. 282, 286-87, 150 A.2d 200 (1959). The trial court of necessity therefore required expert medical testimony for a resolution of the criminal charges against the defendant. Jaffe v. State Department of Health, supra, 349; Sickmund v. Connecticut Co., supra, 379. “[Ejxpert testimony may be admitted if the witness has a special skill or knowledge, beyond the ken of the [average trier of fact], that as properly applied, would be helpful to the determination of an ultimate issue.” Siladi v. McNamara, supra, 513; State v. Esposito, 192 Conn. 166, 175, 471 A.2d 949 (1984); Slimak v. Foster, 106 Conn. 366, 368-69, 138 A. 153 (1927); State v. Dumlao, 3 Conn. App. 607, 610, 491 A.2d 404 (1985). Expert medical testimony delivered with the requisite degree of medical probability is sufficient to remove the issue from the realm of speculation and present an issue to be determined by the trier of fact. Witkowski v. Goldberg, 115 Conn. 693, 696, 163 A. 413 (1932). That there are other possible causes of the injury goes to the weight of the opinion, not to its admissibility.

The expert witnesses in this case testified that the injuries Jennifer suffered were characteristic of those suffered by a severely shaken baby and diagnosed her as suffering from “shaken baby syndrome.” As an adjunct to that diagnosis, the expert witnesses ruled out the possibility of her injuries having been suffered by accidental means or from natural causes. The salient question then is whether “shaken baby syndrome,” i.e., the constellation of symptoms that led to the opinion of the physicians that Jennifer’s injuries were caused by a severe shaking, is a “generally accepted” diagnosis in the medical field. Frye v. United States, 293 F. 1013, 1014 (D.C. App. 1923); State v. Miller, 202 Conn. 463, 484, 522 A.2d 249 (1987). We conclude that it is.

“[T]his court now finds that ‘shaken baby syndrome’ (sometimes denoted as ‘shaken infant syndrome’ or ‘shaken child syndrome’...) is a generally recognized medical condition, and ‘the state of the pertinent art or scientific knowledge [is] sufficiently developed to permit a reasonable opinion to be asserted.’ (People v. Torres, [128 Misc. 2d 129, 134, 488 N.Y.S.2d 358 (1985)]).” Matter of Lou R., 131 Misc. 2d 138, 142, 499 N.Y.S.2d 846 (1986). “[T]he theory of cause of death here, violent shaking, resulting in subdural hematoma, has been accepted as legally sufficient in other cases.” State v. Evans, 74 N.C. App. 31, 36, 327 S.E.2d 638 (1985); see also Dabbs v. State, 518 So. 2d 825 (Ala. App. 1987); People v. Kailey, 662 P.2d 168, 170 (Colo. 1983); State v. Ostlund, 416 N.W.2d 755, 760-61 (Minn. App. 1987); State v. Munici, Slip. Op. 1987 WL 20206, Ohio App. Cuyahoga County, No. 52579 (Nov. 19, 1987); State v. Schneider, Slip. Op. 1984 WL 3719, Ohio App. Lucas County CA No. 6-84-214 (Dec. 21, 1984).

An excellent illustration of the degree of acceptance is the testimony in this particular case. Six expert medical witnesses testified—a specialist in pediatric intensive care, a pediatric neurologist, a pediatric ophthalmologist, and three pediatricians—and all accepted the theory and testified as to the symptoms and causes of “shaken baby syndrome.” Not one witness testified that it was not a medically accepted diagnosis.

The defendant attempts to equate the diagnosis here with that of the “battered child syndrome” and argues there is insufficient indication that Jennifer was a battered child to allow the court to draw any inferences from her injuries, as may be done in the case of a child diagnosed as a “battered child.” We agree that Jennifer does not fit the classic profile of a battered child.

In the instant case, however, the “battered child syndrome” is not an issue. In this case each conclusion or inference indicating the defendant’s guilt was independently supported by evidence. The nature and extent of Jennifer’s injuries and the expert medical testimony elicited allowed the trial court to infer, and to conclude, that her injuries were not caused accidentally and were not the result of natural causes but rather resulted from a severe intentional shaking. The further fact that the evidence clearly showed that the defendant was alone with and had the sole care of the infant during the critical time the injury was apparently inflicted raised an inference and allowed the court to find that he administered the shaking. See State v. Tucker, supra, 418-19; State v. Campbell, 316 N.C. 168, 173-74, 340 S.E.2d 474 (1987); State v. Evans, supra, 34. There was no inference drawn as to the identity of the culpable party and no inference drawn that the injuries to the child were not suffered accidentally simply from the age, number of injuries or the neglected condition of the child as may be permissible in the case where the diagnosis of “battered child syndrome” is applicable.

The defendant next claims that even if the “shaken baby syndrome” is a generally accepted medical diagnosis, it cannot be utilized in a criminal trial to prove that a violent, nonaccidental shaking occurred. If, by this contention, the defendant means that the medical experts could not testify as to the cause of the child’s injury and the amount and type of force it would require to cause such an injury, or that the trial court could not credit such testimony, or draw reasonable inferences from it, we disagree. If, by this contention, the defendant means that the diagnosis of “shaken baby syndrome,” standing by itself, would be insufficient as definitive proof of the identity of the defendant as the person criminally responsible for the baby’s condition, we agree. The trial court, however, did not rely solely on the medical testimony concerning the “shaken baby syndrome” to prove that the defendant was responsible, but rather correlated that testimony with the other circumstantial evidence elicited during the course of the trial and determined that it was sufficient to prove the defendant’s guilt beyond a reasonable doubt. It is evident from the trial court’s statement when denying the defendant’s posttrial motions that this is what occurred. There the trial court said, “The only opinions ever given by any of the doctors that I gave any weight to was an opinion as to how the baby was injured without naming any individual or accusing anybody of doing the harming of the baby.” The defendant’s responsibility, therefore, was obviously determined by the trial court from the totality of the circumstantial evidence, not simply the medical testimony. This is as it should be. Circumstantial evidence may be used to establish the elements of a crime; State v. Dumlao, supra, 613; and “ ‘[i]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.’ State v. Perez, [183 Conn. 225, 227, 439 A.2d 305 (1981)] . . . .” State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985). We find no merit to this claim of the defendant.

The defendant’s final claim, which is a compendium of his previous claims, is that there was insufficient evidence to find, and the trial court erred when it found, the criminal culpability of the defendant, i.e., that he committed the act and had the requisite mental state for culpability. We disagree.

Although we believe this ground has been covered previously, in summary, we reiterate that while it is obviously true that the trial court found the cause of the injury, the approximate time parameters in which it occurred, and its symptoms and effects from the medical testimony, it found the culpability of the defendant, for which no particular state of mind was required, from the totality of the circumstantial evidence. In claiming that the trial court could not have found as it did, the defendant is, in effect, asking that we retry the case. This we cannot do. State v. Stepney, 191 Conn. 233, 235, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984); Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982); State v. Coulombe, 143 Conn. 604, 609, 124 A.2d 518 (1956). We can only review the evidence and construe it as favorably as possible with a view toward sustaining the conviction, and then determine whether, in light of the evidence, the trier of fact could reasonably have reached the conclusion it did reach. State v. Rossier, 175 Conn. 204, 207, 397 A.2d 110 (1978). If any rational trier of the fact could have reached the conclusion reached by the trial court its verdict must be sustained. State v. Miller, supra, 489. We cannot say that the trial court could not have found the defendant guilty beyond a reasonable doubt.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53-21. injury or risk of injury to, or impairing morals OF, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       A subarachnoid hemorrhage is a bleeding into the space between the arachnoid and the pia mater. The arachnoid is the middle of the three membranes which cover the brain and spinal cord; the pia mater is the innermost of the three membranes. 3 Schmidt, Attorney’s Dictionary of Medicine (1988).

       A fontanel is a region in the skull of an infant which is not yet bone, but consists of membrane which later becomes bone. 2 Schmidt, Attorney’s Dictionary of Medicine (1988).

       Janice Lovette had another daughter by the defendant.

       In Moore v. McNamara, 201 Conn. 16, 32-33, 513 A.2d 660 (1986), this court expressed concern with the possibility that the trial court may have used the results of human leukocyte antigen and blood grouping tests to find the fact of sexual intercourse between the putative father and the mother of the child in question. We noted that this would be incorrect because the testing procedure, in the equation used in arriving at its result, already assumed an act of sexual intercourse between the parties during the period of conception.

       “There are several elements that are the criteria for the ‘battered child syndrome.’ They are (1) the child is usually under three years of age; (2) there is evidence of bone injury at different times; (3) there are subdural hemotomas with or without skull fractures; (4) there is a seriously injured child who does not have a history given that fits the injuries; (5) there is evidence of soft tissue injury; (6) there is evidence of neglect.” People v. Jackson, 18 Cal. App. 3d 504, 506, 95 Cal. Rptr. 919 (1972); People v. Durand, 465 A.2d 762, 767 (R.I. 1983).

       The diagnosis of “battered child syndrome” allows the trier of fact to infer that a child’s injuries were not accidentally inflicted and, if the child was in the sole custody of the parents, that the parents are culpable. State v. Dumlao, 3 Conn. App. 607, 623, 491 A.2d 404 (1985); State v. Henson, 33 N.Y.2d 63, 74, 304 N.E.2d 358, 349 N.Y.S.2d 657 (1973).