Dept. of Social Services v. Freeman

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DEPARTMENT OF SOCIAL SERVICES v.
JUSTIN FREEMAN
(AC 41561)
Keller, Bright and Sheldon, Js.
Syllabus
The plaintiff, the Department of Social Services, sought to recover damages
from the defendant attorney for conversion in connection with the defen-
dant’s failure to comply with a child support lien against settlement
proceeds of his client R’s personal injury action. Because R owed child
support arrearages for the children, the plaintiff sent notice to the defen-
dant of a child support lien, directing him not to distribute any proceeds
from the personal injury action without first complying with the lien.
The lien notice was addressed to the defendant’s correct street address
but listed an incorrect zip code. Following the settlement of R’s personal
injury action, the defendant distributed the proceeds to himself, R and
R’s creditors, but did not pay any proceeds to the plaintiff toward R’s
child support arrearages. The plaintiff commenced this statutory (§ 52-
362d) conversion action against the defendant to recover $9500.70 in
child support still owed by R as a result of the defendant’s failure to
withhold that amount from the settlement proceeds to satisfy the lien.
The defendant denied that he had received notice of the child support
lien. In December, 2017, the plaintiff submitted its trial management
report, which listed, as a fact witness, C, who was described as being
the supervisor for customer service support with the United States
Postal Service in Hartford. In the report, the plaintiff explained that C
would testify that a letter mailed to the correct street address but the
wrong zip code within Hartford would be delivered to the stated address
but that it would take longer. In March, 2018, the defendant filed a
motion in limine to preclude C’s proposed testimony as improper expert
testimony because the plaintiff had not filed an expert witness disclo-
sure. Following a hearing on the motion held the day before the start
of evidence, the trial court determined that, although C must be consid-
ered an expert witness, the plaintiff could file a late disclosure of expert
witness, naming C as its expert. The court reasoned that the disclosure of
C had been accomplished by the trial management report, and, therefore,
there was no prejudice to the defendant. In addition, the court noted
that, if the defendant were to find a rebuttal expert, it would permit
him to file a late disclosure of that expert. The court thereafter permitted
the defendant to name J as a rebuttal expert witness in a late disclosure.
Following the trial, at which C and J testified, the jury returned a verdict
in favor of the plaintiff, awarding it $9500.70, the amount of R’s child
support arrearages. On the defendant’s appeal to this court, held:
1. The trial court did not abuse its discretion in permitting the plaintiff to
file a late disclosure of C as an expert witness: contrary to the defendant’s
claim that that court ignored the requirements for expert witness disclo-
sure set forth in the applicable rule of practice (§ 13-4) by allowing C
to testify despite the late disclosure and that he was prejudiced thereby,
the court, applying Practice Book § 13-4 (g) (4), considered the defen-
dant’s substantive knowledge of C’s testimony, which had been conveyed
to him three months before the trial in the plaintiff’s trial management
report, and, on that basis, concluded that the defendant was not preju-
diced by the late disclosure of C as an expert; moreover, the defendant,
who never sought to depose C or move for a continuance for that
purpose after the disclosure was filed, failed to identify any aspect of
the plaintiff’s proof or his ability to meet it that was adversely affected
by the late filing of the expert witness disclosure.
2. This court declined to review the defendant’s claim that the trial court
erred in allowing the plaintiff’s counsel to question him, in the presence
of the jury, as to a prior withdrawn conversion action that had been
brought against him by an unrelated third party, the defendant having
failed to preserve this claim for appellate review.
3. The trial court did not abuse its discretion in allowing the biological
mothers of R’s two minor children to testify as to R’s child support
arrearages, the record having indicated that both mothers’ testimony
was relevant to an essential element of the plaintiff’s case, as their
testimony bore directly on the contested issue of whether child support
arrearages were actually owed to each of them.
Argued November 13, 2019—officially released May 12, 2020
Procedural History
Action to recover damages for conversion, and for
other relief, brought to the Superior Court in the judicial
district of Hartford, where the court, Hon. A. Susan
Peck, judge trial referee, denied the defendant’s motion
to preclude certain testimony; thereafter, the matter
was tried to the jury; verdict and judgment for the plain-
tiff, from which the defendant appealed to this court.
Affirmed.
Jade Baldwin, with whom, on the brief, was Gerald
M. Beaudoin, for the appellant (defendant).
Joan M. Andrews, assistant attorney general, with
whom, on the brief, was William Tong, attorney gen-
eral, for the appellee (plaintiff).
Opinion
SHELDON, J. The defendant, Justin Freeman, a Hart-
ford attorney, appeals from the judgment of the trial
court rendered against him, after a jury trial, finding
him liable for conversion and awarding damages to
the plaintiff, the Department of Social Services. The
judgment was based on the defendant’s failure to com-
ply with a child support lien against the settlement
proceeds of a client’s personal injury action, of which he
allegedly had been given due notice, before distributing
such proceeds to himself, his client’s other creditors,
and his client. The defendant, who claimed at trial that
he had never been served with the notice of lien that
the plaintiff alleged it had sent to him, asserts that the
trial court erred by (1) allowing the plaintiff to disclose
an expert witness immediately before the start of trial
to support its claim that the notice of lien had likely
been delivered to him because it had been mailed to
the correct address, albeit not to the correct zip code,
(2) allowing the plaintiff’s counsel to question him
before the jury as to a prior conversion action that had
been brought against him by an unrelated third party,
and (3) allowing the biological mothers of his client’s
two minor children to testify that his client owed them
child support. We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On May 8, 2010,
Pedro Rivera was involved in a motor vehicle accident
in which he sustained serious physical injuries. Rivera
retained the defendant to represent him in a civil action
against the driver of the motor vehicle that was involved
in the accident. During the pendency of the action,
Rivera was under a court order to pay child support
for his two minor children.1 As of May 12, 2012, Rivera
had a combined child support delinquency of
$12,500.70. Because Rivera owed child support arrear-
ages for his two minor children, the plaintiff’s Bureau
of Child Support Enforcement sent notice to the defen-
dant of a child support lien, directing him not to distrib-
ute any proceeds from the civil action without first
complying with the lien.2 The lien notice was addressed
to the defendant’s correct street address but listed an
incorrect zip code. The notice was not returned to
the sender.
In September, 2013, the defendant settled Rivera’s
civil action for $82,500. Upon receiving the proceeds of
that settlement, the defendant paid $27,500 in attorney’s
fees, $2569.58 in litigation expenses, $5825.40 in insur-
ance provider costs, and $12,700 in repayments to credi-
tors for loans that Rivera had taken out while the action
was pending. The defendant then paid the remaining
$33,905.02 in settlement proceeds to Rivera, without
paying anything to the plaintiff toward Rivera’s child
support arrearages.
As a result, the Support Enforcement Services Unit
of the Judicial Branch, working in cooperation with the
plaintiff to enforce delinquent parents’ child support
obligations, filed a motion in the Superior Court
requesting that Rivera be held in contempt for failure
to pay child support for his minor children. At the con-
clusion of the contempt proceeding, Rivera was found
in contempt for failure to pay child support, and the
state collected $3000 from him toward his arrearages,
leaving him with a combined balance of $9500.70 in
outstanding child support.3 Thereafter, the plaintiff
issued a demand to the defendant that he pay the bal-
ance of Rivera’s combined child support arrearage,
which the defendant refused.
Pursuant to General Statutes § 52-362d,4 the plaintiff
commenced the present action against the defendant
to recover the remaining $9500.70 in child support still
owed by Rivera because the defendant had failed to
withhold that sum from the settlement proceeds of Rive-
ra’s civil action to satisfy the lien. In his amended
answer and special defenses, the defendant denied,
inter alia, that he ever received notice of the child sup-
port lien from the plaintiff.
On May 18, 2016, after the pleadings were closed, the
defendant demanded a jury trial. On December 6, 2017,
the plaintiff submitted its trial management report. The
trial management report listed, as a fact witness,
Michael Chiaro, whom it described as follows: ‘‘United
States Postal Service, Supervisor, Customer Service
Support, Hartford, CT.’’ In the report, the plaintiff fur-
ther explained that Chiaro, ‘‘[t]he United States Post
Office Supervisor for Customer Service Support, Hart-
ford, CT, will testify that a letter mailed to the correct
street address but the wrong zip code within Hartford
would still be delivered, it would just take longer.’’
On March 12, 2018, the defendant filed a motion in
limine to preclude Chiaro’s proposed testimony. The
defendant argued that such testimony was inadmissible
because it was ‘‘of an expert nature, offering technical
and opinion testimony as an employee of the United
States post office as to how he believes the mail would
have been processed.’’ The defendant argued that
because no expert disclosure had been filed, he had
not had an ‘‘opportunity to depose [the] expert and
obtain a rebuttal expert . . . .’’ (Emphasis added.) On
that basis, he argued that the testimony of Chiaro should
be excluded as improper expert testimony. On March
20, 2018, the day before the start of evidence at trial,
the court, Hon. A. Susan Peck, judge trial referee, heard
oral argument on the defendant’s motion to preclude
Chiaro’s testimony. The court ruled that Chiaro must
be considered an expert witness based on the testimony
that the plaintiff intended to elicit from him. It ruled,
however, that the plaintiff could file a late disclosure
of expert witness, naming Chiaro as its expert. The
court reasoned that disclosure of Chiaro had already
been accomplished through the trial management
report submitted December 6, 2017, and, therefore,
there was no prejudice to the defendant. The court
further noted that, if the defendant were able to find a
rebuttal expert, it would also permit him to file a late
disclosure of that expert. Ultimately, the defendant
found a rebuttal expert—Joan Coleman, a retired
employee of the United States Postal Service—whom
the court permitted the defendant to name as his expert
in a late disclosure.
At trial, Chiaro testified that he had spent thirty-three
years working as an employee of the United States
Postal Service in Hartford, twenty-three years of which
he had spent working as a supervisor of customer ser-
vice support. He testified that, in his role as supervisor
of customer service support, he oversaw delivery opera-
tions and retail operations for the post office in Hart-
ford. He further testified that he was ‘‘[v]ery familiar’’
with the operations of the Hartford post office, and
then explained the process by which mail in that post
office is processed, sorted, and delivered. During Chi-
aro’s testimony, he explained that permission is
required from the United States Postal Inspection Ser-
vice before a postal employee can testify in court. Chi-
aro stated that he had received such permission to
testify in this case. Ultimately, Chiaro opined that a
piece of mail like the notice of lien letter at issue here,
which listed the correct street address of the addressee
but the incorrect zip code, ultimately would be deliv-
ered to the desired address.
At trial, the defendant’s expert, Coleman, testified
that she had spent twenty-six years working for the
United States Postal Service, both in Bloomfield and in
Hartford. She explained that she had begun her career
as a carrier in Hartford; then she had transitioned to
Bloomfield, where she worked as a clerk for six years;
finally, she had returned to Hartford, where she worked
as a mail processor for the remainder of her career. As
a mail processor, the role in which she had worked for
most of her career, Coleman’s duties included placing
mail into a stamp cancelling machine to cancel stamps
or to cancel mail and running a mail separating program
that separated the mail by destination of delivery. Cole-
man testified that the most important entry on any piece
of mail is the zip code because that is how mail is
processed and moved about when the post office is
preparing to deliver it. Coleman testified that, in her
expert opinion, a letter addressed to an individual at a
business with the wrong zip code listed on it would not
reach its intended destination.
On her cross-examination of Coleman, the plaintiff’s
counsel sought to challenge her testimony in three basic
ways. First, she elicited evidence that Coleman’s grand-
daughter was a friend of the defendant. Second, she
established that Coleman, unlike Chiaro, did not have
permission from the United States Postal Service to
testify in this case. Third, she sought to demonstrate
that Coleman had lesser credentials than Chiaro
because her expertise was in the processing of mail,
not in its delivery.
Ultimately, on March 28, 2018, the jury returned a
verdict in favor of the plaintiff, awarding it $9500.70,
the exact amount of Rivera’s combined child support
arrearage for his two children. This appeal followed.
I
The defendant first claims that the trial court abused
its discretion by allowing the plaintiff to disclose an
expert witness immediately before the start of trial.
Specifically, he claims that the court ignored the
requirements for expert disclosure set forth in Practice
Book § 13-4 by allowing the expert to testify despite the
late disclosure, and, thus, he was prejudiced because
he was neither afforded an opportunity to depose the
plaintiff’s ‘‘newly identified expert,’’ nor given sufficient
time to find a rebuttal expert of similar qualifications.
The plaintiff disagrees, arguing principally that the
defendant was not prejudiced by the trial court’s deci-
sion because the plaintiff had disclosed the witness
and fully described his proposed testimony in its trial
management report three months before the start of
the trial. We agree with the plaintiff that the trial court
did not abuse its discretion by permitting the late dis-
closure.
The following additional facts are necessary to the
resolution of this claim. On December 6, 2017, the plain-
tiff disclosed Chiaro as a fact witness in its trial manage-
ment report. It was not until March 12, 2018, however,
that the defendant filed a motion to preclude Chiaro’s
testimony. On March 20, 2018, the trial court heard oral
argument on the motion. There, the defendant’s counsel
argued that the defendant had not had the opportunity
to ‘‘develop his case from this expert testimony and
what’s to be proffered.’’ The plaintiff’s counsel argued
that Chiaro was not an expert but simply a ‘‘customer
service guy’’ who would testify from personal experi-
ence about the mailing process. Further, the plaintiff’s
counsel asked that, if the court did consider Chiaro to
be an expert, the plaintiff could be permitted to file a
late expert disclosure, noting that the defendant had
been aware of the substance of Chiaro’s testimony since
December. The court ruled on the motion to preclude
as follows: ‘‘Well, I’m inclined to allow [the late disclo-
sure of the expert witness]. Because I don’t really see
what the prejudice is, it’s not like it’s a surprise. This
is an issue in the case. It apparently [has] been an issue
in the case for some time. And the issues that have
existed concerning, you know, the underlying issue that
gave rise to this case. So, it can’t—it doesn’t come
as any great surprise that mailing, and the difference
between—there wouldn’t be some testimony concern-
ing mailing or mail procedures. So, I don’t really see
what the prejudice is. Plus this person was disclosed
back in December.’’
‘‘We review a trial court’s decision [regarding the
admission of] expert testimony for an abuse of discre-
tion. . . . We afford our trial courts wide discretion in
determining whether to admit expert testimony and,
unless the trial court’s decision is unreasonable, made
on untenable grounds . . . or involves a clear miscon-
ception of the law, we will not disturb its decision. . . .
To the extent the trial court makes factual findings to
support its decision, we will accept those findings
unless they are clearly improper. . . . If we determine
that a court acted improperly with respect to the admis-
sibility of expert testimony, we will reverse the trial
court’s judgment and grant a new trial only if the impro-
priety was harmful to the appealing party. . . .
‘‘Expert testimony should be admitted when: (1) the
witness has a special skill or knowledge directly appli-
cable to a matter in issue, (2) that skill or knowledge
is not common to the average person, and (3) the testi-
mony would be helpful to the court or jury in consider-
ing the issues. . . . [T]o render an expert opinion the
witness must be qualified to do so and there must be a
factual basis for the opinion.’’ (Internal quotation marks
omitted.) State v. Edwards, 325 Conn. 97, 123–24, 156
A.3d 506 (2017).
Practice Book § 13-4 provides in relevant part: ‘‘(a)
A party shall disclose each person who may be called
by that party to testify as an expert witness at trial
. . . . (b) A party shall file with the court and serve
upon counsel a disclosure of expert witnesses which
identifies the name, address and employer of each per-
son who may be called by that party to testify as an
expert witness at trial . . . . (g) . . . (4) . . . A party
who wishes to modify the approved Schedule for Expert
Discovery or other time limitation under this section
without agreement of the parties may file a motion for
modification with the court stating the reasons therefor.
Said motion shall be granted if: (A) the requested modi-
fication will not cause undue prejudice to any other
party; (B) the requested modification will not cause
undue interference with the trial schedule in the case;
and (C) the need for the requested modification was
not caused by bad faith delay of disclosure by the party
seeking modification. . . . (h) A judicial authority
may, after a hearing, impose sanctions on a party for
failure to comply with the requirements of this section.
An order precluding the testimony of an expert witness
may be entered only upon a finding that: (1) the sanction
of preclusion, including any consequence thereof on
the sanctioned party’s ability to prosecute or to defend
the case, is proportional to the noncompliance at issue,
and (2) the noncompliance at issue cannot adequately
be addressed by a less severe sanction . . . .’’
‘‘Whether to allow a late disclosure is clearly within
the discretion of the trial court.’’ Baxter v. Cardiology
Associates of New Haven, P.C., 46 Conn. App. 377, 389,
699 A.2d 271, cert. denied, 243 Conn. 933, 702 A.2d 640(1997). An examination of the record in this case leads
us to conclude that the trial court did not abuse its
discretion in allowing the plaintiff to file an untimely
expert disclosure.
The central issue in this case was whether the defen-
dant had received the child support lien notice. In this
regard, we note that the defendant was aware of the
substance of Chiaro’s testimony in December, 2017,
three months before trial. From December, 2017 to
March, 2018, however, the defendant’s counsel did noth-
ing to prepare to meet that testimony. They did not
depose Chiaro or seek out their own expert to rebut
his expected testimony. It was not until days before trial
that the defendant’s counsel finally moved to preclude
Chiaro from testifying.
During argument on the motion to preclude, the court
clearly weighed the factors for determining whether
Chiaro was an expert. The court stated: ‘‘I do think that
his testimony does require some specialized knowledge.
And for that reason, I think he—it’s pretty close, I have
to say. But it does require some specialized knowledge
of the processes employed by the United States Postal
Service. Although, I mean, I have to say, it’s you know,
March 20th and when was that trial management
report filed?’’
Thereafter, applying Practice Book § 13-4 (g) (4), the
court explained that Chiaro’s testimony could not have
come as a surprise to the defendant because of the
disclosure in December, 2017. It explicitly stated, ‘‘I
don’t really see what the prejudice is, it’s not like it’s
a surprise,’’ and it noted that mailing procedures
undoubtedly concerned the principal issue in the case.
The court, indisputably, considered the defendant’s sub-
stantive knowledge of Chiaro’s testimony, which had
been conveyed to him in the plaintiff’s trial management
report, and decided that the defendant was not preju-
diced by the late expert disclosure. The defendant, who
never sought to depose Chiaro or move for a continu-
ance for that purpose after the expert disclosure was
filed, has not pointed to any aspect of the plaintiff’s
proof or the defendant’s ability to meet it that was
adversely affected by the late filing of the expert wit-
ness disclosure.
Indulging every reasonable presumption in favor of
upholding the court’s ruling, we cannot conclude that
the court abused its discretion in permitting the plaintiff
to make a late disclosure of Chiaro as an expert witness.
II
in allowing the plaintiff’s counsel to question him, in
the presence of the jury, regarding a prior withdrawn
action against him, which included a claim for conver-
sion. Specifically, the defendant claims that all evidence
relating to the prior action was inadmissible as evidence
of bad character, propensity, or criminal tendency
under § 4-5 of the Connecticut Code of Evidence.5 He
further contends that the evidence was not relevant
and that its prejudicial effect outweighed its probative
value, making it inadmissible under §§ 4-1 and 4-3 of the
Connecticut Code of Evidence.6 The plaintiff disagrees,
arguing that the defendant failed to preserve this claim
for appeal. We agree with the plaintiff that the defendant
failed to preserve this claim for appeal, and, thus, it is
not reviewable.
The following additional facts are necessary for the
resolution of this claim. During the plaintiff’s direct
examination of the defendant, the following colloquy
occurred:
‘‘[The Plaintiff’s Counsel]: I understand now. This
isn’t the only case where you’re currently being sued
for conversion, is it?
‘‘[The Defendant]: Yes, it is.
‘‘[The Plaintiff’s Counsel]: Don’t you have a case
pending with Brignole & Bush?
‘‘[The Defendant]: No, I do not.
‘‘[The Plaintiff’s Counsel]: Oh, that settled?
‘‘[The Defendant]: How is it relevant? I mean—
‘‘[The Defendant’s Counsel]: Objection. Relevance.’’
Following the objection by the defendant’s counsel,
a sidebar was held, and the jury was then excused.
The defendant’s counsel then explained to the court as
follows: ‘‘Your Honor, if I may, as you’re going through
[the complaint], I’m looking up the case right now, it
was withdrawn by the plaintiff as to all defendants on
March 20th of this year.’’ The court requested that the
question at issue be read back. After hearing the ques-
tion again, the following colloquy occurred:
‘‘The Court: Okay. Well, you want to answer the—
the question . . . or do you want to—I mean—or do
you want to have her rephrase the question?
‘‘[The Defendant]: No, I want to—
‘‘[The Defendant’s Counsel]: Yeah, he—he did answer
that it was—
‘‘The Court: When this trial started on March 20th,
you know, this—when the jury was selected in this
case, this case was pending.
‘‘[The Defendant]: It’s no longer pending. You can’t—
they’ve heard—
‘‘The Court: I mean, I’ll have her rephrase the
question.
‘‘[The Defendant’s Counsel]: Oh, yeah. I want to get
into it. They heard—they heard— they heard what they
heard, so now it calls for an explanation. It was taken
completely out of context.
‘‘The Court: I’m sorry?
‘‘[The Defendant’s Counsel]: It was—it’s—it was
taken completely out of context.
‘‘The Court: Well—
‘‘[The Plaintiff’s Counsel]: You mean the case was
actually, pending.
‘‘The Court: —that’s not the answer to the question,
so let’s get—I’ll ask you to rephrase the question.
‘‘[The Plaintiff’s Counsel]: Okay.
‘‘The Court: And let’s see what happens.’’ (Empha-
sis added).
The jury then returned and the plaintiff’s counsel
rephrased the question as follows:
‘‘[The Plaintiff’s Counsel]: Did you recently resolve
another pending case you had for conversion?
‘‘[The Defendant]: Yes.
‘‘[The Plaintiff’s Counsel]: What happened in that
case?’’
The defendant then explained what had happened in
the conversion case as follows: ‘‘That case involved a
lawyer that I took on in 2014 . . . who left his former
firm, Bringnole, Bush & Lewis. Upon leaving that firm
he took over, roughly, twenty-five files from that firm
that were his personal files that—that clients who came
in to see him, with permission, all the proper documen-
tation in order, he brought those over to my firm, and
then there was a fee dispute as to the [attorney’s] fees
on those cases.
‘‘As the principal, meaning the owner of my law firm,
and [the attorney] . . . now worked for me, I was sued
in that capacity; so, really, I had no—no involvement
whatsoever in any of the twenty-five files at all. . . .
[W]e eventually came to an agreement as to the fee
division of the [attorney’s fees] that were in escrow,
and the case was withdrawn.’’ At no point after the
question was rephrased did the defendant’s counsel put
on the record that he was maintaining or renewing his
objection. Further, he did not request a limiting
instruction.
We review evidentiary claims pursuant to an abuse
of discretion standard. ‘‘Generally, [t]rial courts have
wide discretion with regard to evidentiary issues and
their rulings will be reversed only if there has been an
abuse of discretion or a manifest injustice appears to
have occurred. . . . Every reasonable presumption
will be made in favor of upholding the trial court’s
ruling, and it will be overturned only for a manifest
abuse of discretion.’’ (Internal quotation marks omit-
ted.) State v. O’Neil, 67 Conn. App. 827, 831, 789 A.2d
531 (2002).
At the outset, we must address the plaintiff’s claim
that the defendant failed to preserve this claim for
appellate review. ‘‘Assigning error to a court’s eviden-
tiary rulings on the basis of objections never raised at
trial unfairly subjects the court and the opposing party
to trial by ambush.’’ (Internal quotation marks omitted.)
State v. Gonzalez, 272 Conn. 515, 540, 846 A.2d 847(2005). The standard for the preservation of a claim
alleging an improper evidentiary ruling at trial is well
settled. ‘‘The court shall not be bound to consider a
claim unless it was distinctly raised at the trial or arose
subsequent to the trial.’’ Practice Book § 60-5. ‘‘In order
to preserve an evidentiary ruling for review, trial coun-
sel must object properly. . . . Our rules of practice
make it clear that counsel must object to a ruling [on]
evidence [and] state the grounds upon which objection
is made . . . to preserve the grounds for appeal.’’
(Internal quotation marks omitted.) State v. Sun, 92
Conn. App 618, 630, 886 A.2d 1227 (2005). ‘‘Once counsel
states the authority and ground of his objection, any
appeal will be limited to the ground asserted.’’ (Internal
quotation marks omitted.) United Technologies Corp.
v. East Windsor, 262 Conn. 11, 30, 807 A.2d 955 (2002).
Furthermore, ‘‘[a]n objection to a question on a specific
ground is not an objection to a similar question later.
Sears v. Curtis, 147 Conn. 311, 313, 10 A.2d 742 (1960);
State v. Rios, 171 Conn. App. 1, 38–39, 156 A.3d 18,
cert. denied, 325 Conn. 914 [159 A.3d 914] (2017).’’ E.
Prescott, Tait’s Handbook of Connecticut Evidence (6th
Ed. 2019) §1.25.2, p. 89.
The defendant’s claim on appeal is unpreserved for
two reasons. First, after the initial objection by the
defendant’s counsel, the defendant insisted from the
witness stand that he be allowed to answer the question
by the plaintiff’s counsel about the other conversion
action to explain what had led to the action and how
it was resolved. In so doing, he expressly indicated his
agreement with the court’s proposed course of action,
which was to allow the plaintiff’s counsel to rephrase
her question, correctly noting that the action was no
longer pending. At no point after the question was
rephrased did the defendant’s counsel object.
Second, assuming, arguendo, that the defendant’s
counsel did properly object to the initial question by
the plaintiff’s counsel concerning the other conversion
action, the defendant’s claim on appeal is, nonetheless,
unpreserved. ‘‘Our review of evidentiary rulings made
by the trial court is limited to the specific legal ground
raised in the objection. . . . To permit a party to raise
a different ground on appeal than was raised during
trial would amount to ‘trial by ambuscade,’ unfair both
to the trial court and to the opposing party.’’ (Citations
omitted.) State v. Sinclair, 197 Conn. 574, 579, 500 A.2d
539 (1985). Moreover, our Supreme Court has held that
an objection to proffered evidence on the ground of
relevance is insufficient to raise or to preserve a claim
that it is inadmissible as improper evidence of prior
misconduct. See id., 578–80. In the present case, the
objection before the trial court was on the ground of
relevance. On appeal, by contrast, the defendant claims
that the question concerning the conversion action was
inappropriate because ‘‘evidence of prior misconduct
cannot be used to suggest that a defendant has a bad
character or propensity for criminal behavior.’’
The present claim is not the same claim that the
defendant initially raised in the trial court concerning
the plaintiff’s questioning of him as to the other conver-
sion action. To consider that claim on appeal would be
to allow a trial by ambuscade. For this reason as well,
we decline to review this claim on appeal.
III
Finally, we turn to the defendant’s claim that the
trial court erred in allowing the biological mothers of
Rivera’s two minor children to testify as to Rivera’s
child support arrearages. Specifically, the defendant
contends that the testimony of both mothers was ‘‘irrel-
evant and immaterial to the factual issues surrounding
the case’’ and, thus, that it was admitted in violation of
§ 4-1 of the Connecticut Code of Evidence. He further
contends that allowing both mothers to testify was
‘‘unfairly prejudicial, confusing, and constitut[ed] need-
less presentation of cumulative evidence’’ and, thus,
that it was admitted in violation of § 4-3 of the Connecti-
cut Code of Evidence.7 The plaintiff disagrees, arguing
that the challenged testimony was not only relevant
but essential to proving the disputed allegations of the
complaint. We agree with the plaintiff.
Certain additional facts are necessary to the resolu-
tion of this claim. On March 15, 2018, the defendant
filed motions in limine requesting that the trial court
prohibit Maribel Diaz and Margo Rivera, the biological
mothers of Rivera’s two minor children, from testifying
as fact witnesses as to the arrearages owed to them by
Rivera. The defendant claimed generally that the only
contested issue at trial was whether the lien notice
allegedly sent to him by the plaintiff in fact had been
delivered to him, as the plaintiff had alleged. On that
basis, the defendant argued that the mothers should be
prohibited from testifying because their testimony was
irrelevant to the issue of delivery and would only con-
fuse the issues before the jury. On March 20, 2018, the
court held a hearing on the motions in limine. There,
the plaintiff argued that the mothers’ testimony was
relevant because the defendant, in his amended answer
and special defenses, had not admitted its allegation
that Rivera owed child support for the two children
but, instead, had left the plaintiff to its proof.8 Therefore,
the plaintiff argued, the mothers’ testimony was neces-
sary to establish that Rivera actually owed them child
support, as it had alleged. Ultimately, the trial court
denied the defendant’s motion to preclude the mothers’
testimony, and the mothers testified at trial.
During the plaintiff’s direct examination of Margo
Rivera, the following colloquy took place:
‘‘[The Plaintiff’s Counsel]: And, [Margo] Rivera, did
you end up with a child support order as part of your
divorce [from Rivera]?
‘‘[Margo Rivera]: Yes. . . .
‘‘[The Plaintiff’s Counsel]: Are you receiving the
court-ordered child support?
‘‘[Margo Rivera]: No. . . .
‘‘[The Plaintiff’s Counsel]: And do you recall what he
owed you at the time the case settled, his personal
injury case?
‘‘[Margo Rivera]: I think it was, like, $10,000 or 9000.
I don’t really—I don’t recall the specific amount.
‘‘[The Plaintiff’s Counsel]: It’s a lot more than that
now, though, isn’t it?
‘‘[Margo Rivera]: Yes.’’
During the plaintiff’s direct examination of Diaz, the
following colloquy occurred:
‘‘[The Plaintiff’s Counsel]: And do you have any
children?
‘‘[Diaz]: Yes, I have one son. . . . Austin Rivera.
‘‘[The Plaintiff’s Counsel]: Who’s Austin’s father?
‘‘[Diaz]: Pedro Rivera. . . .
‘‘[The Plaintiff’s Counsel]: Had you been to court with
. . . Rivera to get an initial order of child support?
‘‘[Diaz]: Yes.
‘‘[The Plaintiff’s Counsel]: Do you have a current
order of child support?
‘‘[The Defendant’s Counsel]: Your Honor, I’m going to
object to this line of questioning as to relevance . . . .
‘‘The Court: Yeah, I’m going to—I’m going to sustain
the objection. . . .
***
‘‘[The Plaintiff’s Counsel]: Did you receive anything
toward your past due child support from the personal
injury settlement?
‘‘[Diaz]: No, I did not.
‘‘[The Plaintiff’s Counsel]: How much child support
is currently owed to you by . . . Rivera? . . .
‘‘[Diaz]: Close to $8000.’’
‘‘The trial court’s ruling on the admissibility of evi-
dence is entitled to great deference. . . . [T]he trial
court has broad discretion in ruling on the admissibility
. . . of evidence. . . . The trial court’s ruling on evi-
dentiary matters will be overturned only upon a show-
ing of a clear abuse of the court’s discretion. . . . We
will make every reasonable presumption in favor of
upholding the trial court’s ruling, and only upset it for
a manifest abuse of discretion. . . . Moreover, eviden-
tiary rulings will be overturned on appeal only where
there was an abuse of discretion and a showing by the
defendant of substantial prejudice or injustice. . . .
When reviewing claims under an abuse of discretion
standard, the unquestioned rule is that great weight is
due to the action of the trial court and every reasonable
presumption should be given in favor of its correctness
. . . . In determining whether there has been an abuse
of discretion, the ultimate issue is whether the court
could reasonably conclude as it did.’’ (Citations omitted;
internal quotation marks omitted.) PSE Consulting,
Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279,
328–29, 838 A.2d 135 (2004).
‘‘The law defining the relevance of evidence is well
settled. Relevant evidence is evidence that has a logical
tendency to aid the trier in the determination of an
issue. . . . The trial court has wide discretion to deter-
mine the relevancy of evidence . . . . Every reason-
able presumption should be made in favor of the cor-
rectness of the court’s ruling in determining whether
there has been an abuse of discretion.’’ (Citation omit-
ted; internal quotation marks omitted.) Id., 332; see also
Conn. Code Evid. § 4-1.
A review of the record shows that both mothers’
testimony was relevant to an essential element of the
case, specifically, whether Rivera owed child support
for the children of Margo Rivera and Diaz. The defen-
dant argued, both at trial and in his appellate brief,
that he did not deny the allegation that child support
arrearages were owed by Rivera. In his amended answer
and special defenses, however, the defendant neither
admitted nor denied the allegation, but left the plaintiff
to its proof. On that basis, the mothers’ testimony bore
directly on the contested issue of whether child support
arrearages were actually owed to each of them, which
was an essential element of the plaintiff’s case. Conse-
quently, the court did not abuse its discretion when it
allowed the mothers to testify as to the arrearages owed
to them by Rivera.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court order to pay child support for his two minor children arose
from two separate family court cases: (1) a dissolution action involving a
custodial parent named Margo Rivera; and (2) a paternity petition involving
a custodial parent named Maribel Diaz.
2
The lien notice stated: ‘‘Pursuant to § 52-362d (d) of the Connecticut
General Statutes this is notification to immediately withhold any monies
due to the obligor PEDRO JUAN RIVERA from the distribution of a lump
sum settlement or award.
‘‘This notice certifies that the above referenced obligor is subject to a
child support order of the Superior Court or Family Support Magistrate and
the order is payable through this State of Connecticut IV-D Agency. The
child support lien shall be paid to the full extent of the proceeds that are
due PEDRO JUAN RIVERA.’’
3
The $3000 collected by Support Enforcement Services was split equally
between the two mothers, $1500 each.
4
General Statutes § 52-362d provides in relevant part: ‘‘(a) Whenever an
order of the Superior Court or a family support magistrate for support of
a minor child or children is issued and such payments have been ordered
to be made to the state acting by and through the IV-D agency and the
person against whom such support order was issued owes past-due support
in the amount of five hundred dollars or more, the state shall have a lien
on any property, real or personal, in which such person has an interest to
enforce payment of such past-due support. . . .
‘‘(d) Whenever an order of the Superior Court or a family support magis-
trate of this state . . . for support of a minor child or children is issued
and such payments have been ordered through the IV-D agency, and the
obligor against whom such support order was issued owes overdue support
under such order in the amount of five hundred dollars or more, the IV-D
agency . . . or Support Enforcement Services of the Superior Court may
notify . . . (2) any person having or expecting to have custody or control
of or authority to distribute any amounts due such obligor under any judg-
ment or settlement . . . . Upon receipt of such notice, such . . . person
. . . shall withhold delivery or distribution of any such property, benefits,
amounts, assets or funds until receipt of further notice from the IV-D
agency. . . .’’
5
Section 4-5 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) General rule. Evidence of other crimes, wrongs or acts of a person
is inadmissible to prove the bad character, propensity, or criminal tendencies
of that person except as provided in subsection (b). . . .
‘‘(c) Evidence of other crimes, wrongs or acts of a person is admissible
for purposes other than those specified in subsection (a), such as to prove
intent, identity, malice, motive, common plan or scheme, absence of mistake
or accident, knowledge, a system of criminal activity, or an element of the
crime, or to corroborate crucial prosecution testimony. . . .’’
6
Section 4-1 of the Connecticut Code of Evidence provides: ‘‘Relevant
evidence means evidence having any tendency to make the existence of any
fact that is material to the determination of the proceeding more probable
or less probable than it would be without the evidence.’’ (Internal quotation
marks omitted.)
Section 4-3 of the Connecticut Code of Evidence provides: ‘‘Relevant
evidence may be excluded if its probative value is outweighed by the danger
of unfair prejudice or surprise, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time or needless presenta-
tion of cumulative evidence.’’
7
At trial, however, the defendant failed to raise a claim or object on
the basis that the probative value of the testimony of either mother was
outweighed by the danger of unfair prejudice, and, thus, the defendant failed
to preserve this claim on appeal.
In order to preserve this claim for appeal, the defendant’s counsel should
have argued that, even if the mothers’ testimony was relevant, it should,
nonetheless, have been excluded because its probative value was out-
weighed by the danger it posed of unfair prejudice; however, they did not.
Moreover, the defendant’s motions in limine to preclude the testimony of
Margo Rivera and Maribel Diaz argued that their testimony was irrelevant
and should be excluded under § 4-1 of the Connecticut Code of Evidence,
and, therefore, the motions in limine also did not preserve for appeal a
claim pursuant to § 4-3 of the Connecticut Code of Evidence.
We, therefore, decline to review that portion of the defendant’s claim in
which he argues that the probative value of the testimony was outweighed
by its danger of unfair prejudice.
8
Practice Book § 10-46 provides in relevant part: ‘‘The defendant in the
answer shall specially deny such allegations of the complaint as the defen-
dant intends to controvert, admitting the truth of the other allegations
. . . .’’
Practice Book §13-23 (a) provides in relevant part: ‘‘An answering party
may not give lack of information or knowledge as a reason for failure to
admit or deny unless such party states that he or she has made reasonable
inquiry and that the information known or readily obtainable by him or her
is insufficient to enable an admission or denial. . . .’’
On this basis, the rules of practice provide three ways in which to respond
to allegations in a complaint: to admit, to deny, or to allege lack of informa-
tion. See generally Practice Book §§ 10-46 and 13-23 (a).
In the defendant’s answer, he stated: ‘‘[T]he defendant . . . has insuffi-
cient knowledge to form a belief as to the truth and, therefore, denies same
and leaves the plaintiff to [its] proof.’’ This statement conveys both that he
denies the allegation and that he has a lack of information to either admit or
deny the allegation. Regardless of whether the defendant denied or asserted
a lack of knowledge, the end result is the same: the defendant left the
plaintiff to its proof.