Fedele v. Romero , 37 Conn. Super. Ct. 885 ( 1982 )

The plaintiff brought this paternity action, in which the state of Connecticut has intervened as an interested party, against the defendant on August 27, 1980. After a hearing on the merits, the trial court ordered him to pay to the plaintiff $3500 in accrued maintenance and support at the weekly rate of $15, as well as $60 per week for future child support. The defendant filed a timely motion to open the judgment, claiming that when rendering judgment, the trial court had before it insufficient evidence of his living expenses. The court's denial of this motion is the basis of the defendant's appeal.¹

The defendant has alleged that when the trial court established support and maintenance payments, it had before it insufficient evidence of his living expenses. The trial court's conclusion must stand if it is reasonable. Bachmann v. Reardon, 138 Conn. 665, 667,88 A.2d 391 (1952). The validity of a claim that a decision is unsupported by the evidence may be tested only by reference to the record together with exhibits and transcripts filed in the matter. Morningside Assn. v. Morningside Development, Inc., 172 Conn. 60, 63, 372 A.2d 141 (1976). Recognizing the heavy burden that an appellant bears in this regard; St. Pierre v. St. Pierre,172 Conn. 11, 12, 372 A.2d 129 (1976); drafters of the Practice Book included a section that permits parties to support their allegations of error with specific reference to pertinent portions of the transcript of trial court proceedings. Practice Book 3060V. The defendant, however, has not submitted a transcript to support his allegations of error. As we have previously held, since the defendant failed to file a transcript as required by Practice Book 3012 and 3060V, we are unable to consider the errors claimed with respect to the sufficiency of the evidence. State v. Gibbs, 37 Conn. Super. Ct. 840,841, 439 A.2d 451 (1981).

The defendant also contends that the trial court erred because it failed to state the factual basis of its award of maintenance and support. Specifically, the defendant avers that the court did not comply with Practice Book 3060B, which provides that "the court shall . . . state its decision on the issues in the case, and, if there are factual issues, the factual basis of its decision."

This action involved the issue of paternity as well as that of support under 46b-171. In its memorandum of decision, the trial court stated that it "had the benefit of the testimony of numerous witnesses on both sides of the issues capably produced by counsel for the parties." The defendant has failed to demonstrate to us that this statement provides an inadequate factual basis for its decision. Moreover, he has made no attempt to seek a further articulation of the factual basis of the decision from the trial court.² We conclude, therefore, that the factual basis of the decision, as stated by the trial court, may stand and is legally sufficient.

Finally, the defendant avers that the trial court abused its discretion by refusing to grant his motion to open the judgment on the ground that the court had before it insufficient evidence on which to base its support and maintenance orders.³ "The opening . . . of a judgment during the term at which it is rendered is at the legal discretion of the court." Poneleit v. Dudas, 141 Conn. 413, 416,106 A.2d 479 (1954). The action of the trial court in this regard may not be disturbed on appeal unless the court acted unreasonably and in clear abuse of its discretion. O'Leary v. Lumbermen's Mutual Casualty Co., 178 Conn. 32, 41, 420 A.2d 888 (1979). "[O]ne of the essential conditions for granting of such a motion is that the evidence which the party seeks to offer could not have been known and with reasonable diligence produced at trial." Stocking v. Ives, 156 Conn. 70, 73, 238 A.2d 421 (1968). The record before us shows no evidence of due diligence by the defendant in this regard. Moreover, to allow an unsuccessful litigant further opportunity to testify upon an issue that has already been fully litigated at trial and which might just as easily have been offered at trial, would prolong litigation beyond the reasonable parameters of and be contrary to sound public policy. We find that the trial court did not abuse its discretion in denying the defendant's motion to open the judgment.

Similarly, the trial court did not abuse its discretion when it denied the defendant's motion to open judgment based upon retention of new counsel. An attorney is entitled to the benefit of a presumption that he has discharged his duty, whether legal or moral, until the contrary is shown. Slade v. Harris, 105 Conn. 436, 440,135 A. 570 (1927). Nothing indicates that original counsel did not discharge his duty, and the court did not err by denying the defendant's motion to open the judgment on this ground.

There is no error.

In this opinion BIELUCH and COVELLO, Js., concurred.