Kathrynne S. v. Swetz ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
KATHRYNNE S. v. STANLEY SWETZ*
(AC 41143)
Alvord, Bright and Bear, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
granting the application for relief from abuse filed by the plaintiff, pursu-
ant to statute (§ 46b-15), and issuing a domestic violence restraining
order against him. At the time she filed her application, the plaintiff
resided with her life partner and his son, the defendant. In her affidavit,
the plaintiff averred, inter alia, that the defendant verbally attacked her,
followed her throughout the house, opened windows on cold days, used
derogatory language against her, threatened to sabotage her car and
barged into her room to take photographs of her in her nightwear, and
at the hearing on her application she described his conduct as constant
intimidation, threatening and stalking. Following the hearing, the trial
court granted the application for a restraining order, and the defendant
appealed to this court. Held:
1. There was sufficient evidence to support the trial court’s finding that the
defendant presented a continuous threat of present physical harm or
injury to the plaintiff: that court found that a restraining order was
warranted on the basis of the plaintiff’s affidavit, her testimony, and
the testimony of a social worker, as the plaintiff testified that she was
intimidated and bullied, and that her physical safety was in jeopardy
with the defendant in the home, there were at least two prior incidents
in which the defendant made physical contact with the plaintiff, and
the defendant admitted he was charged with disorderly conduct after
one of those incidents; moreover, the court, as the sole arbiter of the
credibility of the witnesses, was free to credit the plaintiff’s testimony
that while at the same residence, the defendant constantly screamed
into her left ear, told her that she did not belong in certain parts of the
house, ranted at her and threatened her with physical harm, which
caused her to tremble, and that testimony was corroborated by the
testimony of the social worker.
2. The defendant could not prevail on his claim that the trial court was
improperly influenced by his invocation of his right against self-incrimi-
nation pursuant to the fifth amendment of the United States constitution,
which occurred after he objected to the admission of a certain audio
recording and the court informed him that the recording had been shared
with the Manchester Police Department, that there might be a criminal
investigation, that the restraining order hearing was being recorded and
that he had a fifth amendment right against self-incrimination, which the
defendant subsequently invoked; the court, which advised the defendant
that he had a right not to incriminate himself, did not specifically state
that it was drawing an adverse inference against the defendant because
he objected to the admission of the recording into evidence, and even
if the trial court did draw an erroneous adverse inference from the
defendant’s objection to the admission of evidence, it was harmless error
because there was other sufficient evidence of the defendant’s conduct.
3. The trial court properly applied the preponderance of the evidence stan-
dard of proof to weigh the evidence at the hearing for the domestic
violence restraining order; because the plaintiff applied for a civil
restraining order under § 46b-15, which is silent as to the applicable
standard of proof, the preponderance of the evidence standard applied,
and it is the common and correct practice for trial courts to employ
that standard of proof in cases involving domestic violence
restraining orders.
Argued May 20—officially released August 20, 2019
Procedural History
Application for relief from abuse, brought to the
Superior Court in the judicial district of Hartford, where
the court, Bozzuto, J., granted the application and
issued a restraining order, from which the defendant
appealed to this court. Affirmed.
Stanley Swetz, self-represented, the appellant
(defendant).
Opinion
PER CURIAM. The self-represented defendant, Stan-
ley Swetz, appeals from the judgment of the trial court
granting the application of the self-represented plaintiff,
Kathrynne S., for relief from abuse and issuing a domes-
tic violence restraining order pursuant to General Stat-
utes § 46b-15.1 On appeal, the defendant claims that
the court improperly (1) determined that there was
evidence of imminent physical harm or threat, (2) con-
sidered his invocation of his right against self-incrimina-
tion pursuant to the fifth amendment of the United
States constitution as evidence (fifth amendment right),
and (3) applied an incorrect standard of proof in grant-
ing the application.2 We affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to this appeal. On November 17, 2017, the plaintiff
filed an application for relief from abuse against the
defendant pursuant to § 46b-15. At the time of her appli-
cation, the plaintiff resided with her life partner and
his son, the defendant.3 In her application, the plaintiff
averred under oath that the defendant screamed in her
left ear, verbally attacked her so forcefully that she
would be covered in his spit, followed her throughout
the house, opened windows on cold days, used deroga-
tory language directed at her, threatened to sabotage
her car, and barged into her room to take photographs
of her in her nightwear, and that the defendant had
been arrested for assaulting her in 2015.
At the hearing on the plaintiff’s application, on
November 30, 2017, the plaintiff described the defen-
dant’s conduct as ‘‘constant intimidation and threaten-
ing and stalking . . . .’’ The plaintiff also testified that
the defendant struck her on two occasions, once in
2010 and again in 2015. In support of her claims, the
plaintiff offered into evidence, to which the defendant
objected,4 a flash drive containing an audio recording of
the defendant allegedly engaging in an eighteen minute
‘‘verbal rant’’ against the plaintiff. The plaintiff further
testified that she had gone to the Manchester police
with the recording. The court then asked the defendant
if he objected to its hearing of the recording given
to the police and advised the defendant of his fifth
amendment right. After the court’s advisement, the
defendant invoked his fifth amendment right with
respect to the contents of the recording.5 The court
then stated that it inferred ‘‘that there is stuff on that
tape he doesn’t want this court to hear.’’ The tape was
not admitted into evidence.
The plaintiff also presented the testimony of Brooke
Clemons, a social worker for Manchester Protective
Services for the Elderly. Clemons testified that the
plaintiff had provided a video from her phone about
the emotional abuse she received and that the plaintiff
had told her that the defendant stole food and repeat-
edly stood right behind her and yelled in her ear. Clem-
ons further testified that because of the plaintiff’s dis-
closure, she opened two protective service cases: one
on the plaintiff and one on her life partner. She also
testified that she met with the plaintiff’s life partner
and he ‘‘supported everything that [the plaintiff] was
telling [her] that was happening in the home’’ and that
‘‘he would like to see his son leave.’’6 The defendant
did not object to any of Clemons’ testimony.
In response, the defendant argued at the hearing that
the plaintiff had not made any accusations of imminent
physical harm in her application for the restraining
order or in her presentation to the court. He also argued
that the plaintiff had presented ‘‘no concrete day, time’’
associated with her claims.
At the conclusion of the hearing, the court orally
rendered its decision granting the plaintiff’s application
for a restraining order. The court stated: ‘‘I do believe
[the plaintiff], that she feels that her safety is at risk
with [the defendant] being present in the home. I do
believe that she feels intimidated and bullied and that
her physical safety is in jeopardy. So, I think it’s entirely
appropriate to grant the relief requested.’’ The court
issued a full no-contact order for one year. This appeal
followed. Additional facts will be set forth as necessary.
As a preliminary matter, we note that although the
restraining order expired on November 30, 2018, the
defendant’s appeal is not moot. In Putman v. Kennedy,
279 Conn. 162, 164–65, 900 A.2d 1256 (2006), our
Supreme Court concluded that ‘‘the expiration of a
domestic violence restraining order does not render an
appeal from that order moot because it is reasonably
possible that there will be significant collateral conse-
quences for the person subject to the order.’’ Accord-
ingly, we proceed to the merits of the defendant’s
appeal.
I
On appeal the defendant first claims that the court
erroneously determined that he had threatened and bul-
lied the plaintiff and that he had caused her to fear for
her personal safety. More specifically, he claims that
‘‘[t]he judge made her decision based on feelings and
on no actual facts brought into evidence.’’
We first set forth the standard of review and applica-
ble legal principles that guide our analysis. ‘‘[T]he stan-
dard of review in family matters is well settled. An
appellate court will not disturb a trial court’s orders in
domestic relations cases unless the court has abused
its discretion or it is found that it could not reasonably
conclude as it did, based on the facts presented. . . .
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. . . . Appellate review of a
trial court’s findings of fact is governed by the clearly
erroneous standard of review. . . . A finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Footnote omitted;
internal quotation marks omitted.) Princess Q. H. v.
Robert H., 150 Conn. App. 105, 111–12, 89 A.3d 896
(2014).
Section 46b-15 (a), which governs this case, autho-
rizes the court to issue a restraining order upon a finding
that a ‘‘household member . . . has been subjected to
a continuous threat of present physical pain or physical
injury, stalking or a pattern of threatening . . . .’’
Because the court granted the plaintiff’s application on
the basis of its finding that there existed a continuous
threat of present physical pain or injury, we proceed
under that part of § 46b-15, and not under the stalking
or pattern of threatening portion of the statute. With
respect to the defendant’s claim as considered by the
court, ‘‘[t]he plain language of § 46b-15 clearly requires
a continuous threat of present physical pain or physical
injury before a court can grant a domestic violence
restraining order. . . . [D]omestic violence restraining
orders will not issue in the absence of the showing of
a threat of violence, specifically a continuous threat of
present physical pain or physical injury to the appli-
cant.’’ (Citation omitted; internal quotation marks omit-
ted.) Jordan M. v. Darric M., 168 Conn. App. 314, 319,
146 A.3d 1041, cert. denied, 324 Conn. 902, 151 A.3d
1287 (2016). As this court held in Putman, after remand
from our Supreme Court, ‘‘one incident [of physical
injury], combined with a finding that a respondent pres-
ently poses a continuous threat, is sufficient to satisfy
§ 46b-15.’’ (Emphasis in original.) Rosemarie B.-F. v.
Curtis P., 133 Conn. App. 472, 477, 38 A.3d 138 (2012);
see Putman v. Kennedy, 104 Conn. App. 26, 32–34, 932
A.2d 434 (2007), cert. denied, 285 Conn. 909, 940 A.2d
809 (2008).
In Putman, as in the present case, the defendant
argued that the trial court abused its discretion because
there was no factual basis to support its finding that
the defendant presented a continuous threat of physical
pain or injury to support the issuance of a restraining
order under § 46b-15. Putman v. Kennedy, supra, 104
Conn. App. 33–34. Specifically, the defendant in Put-
nam argued that there was only an isolated altercation
with his son and that there was no history of violence.
Id., 33–34. This court held that ‘‘neither a pattern of
abuse nor the son’s subjective fear of the defendant is
a requirement for the finding of a continuous threat.
. . . It would defy the prophylactic purpose of the stat-
ute to impose an absolute bar on relief until the person
for whom protection was sought has suffered multiple
physical abuses.’’ (Citations omitted.) Id., 34. The trial
court had found, and this court affirmed, that the alter-
cation between the father and the son, along with the
father’s refusal to accept responsibility, was sufficient
to find that the son was subject to a continuous threat
of present physical pain or injury, despite the fact that
the son did not state that he was afraid of his father.
Id., 34–35. To have held otherwise would have restricted
‘‘the necessarily broad discretion trial courts must
retain in dealing with such sensitive and fact specific
matters.’’ Id., 35.
In the present case, the court found that a restraining
order was warranted on the basis of the plaintiff’s affida-
vit, her testimony, and the testimony of the social
worker. The court believed the plaintiff’s testimony that
she was intimidated and bullied, and that her physical
safety was in jeopardy with the defendant present in
the home. ‘‘In pursuit of its fact-finding function, [i]t is
within the province of the trial court . . . to weigh the
evidence presented and determine the credibility and
effect to be given the evidence. . . . Credibility must
be assessed . . . not by reading the cold printed
record, but by observing firsthand the witness’ conduct,
demeanor and attitude. . . . An appellate court must
defer to the trier of fact’s assessment of credibility
because [i]t is the [fact finder] . . . [who has] an oppor-
tunity to observe the demeanor of the witnesses and
the parties; thus [the fact finder] is best able to judge
the credibility of the witnesses and to draw necessary
inferences therefrom.’’ (Internal quotation marks omit-
ted.) Margarita O. v. Fernando I., 189 Conn. App. 448,
461–62, 207 A.3d 548, cert. denied, 331 Conn. 930, 207
A.3d 1051 (2019).
In the case at bar, the court also had before it evidence
of at least two prior incidents when the defendant made
physical contact with the plaintiff. The plaintiff testified
about an incident in 2010 in which the defendant hit
her. Later in the hearing, the plaintiff testified about
another incident in 2015 in which the defendant struck
her, which resulted in the defendant’s arrest, and a
subsequent court order for him to complete anger man-
agement classes. The defendant admitted to being
charged, after the 2015 incident, with disorderly
conduct.
Additionally, the plaintiff described in her testimony
the conduct of the defendant while they lived at the
same residence, including that the defendant constantly
screamed into her left ear, told the plaintiff that she
did not belong in certain parts of the house, ranted at
her for long periods of time, and threatened her with
physical harm. According to the plaintiff, the defen-
dant’s actions caused her to tremble. The court also
heard the testimony of Clemons, which corroborated
the plaintiff’s claims.
The court, as the sole arbiter of credibility, was free
to credit the plaintiff’s testimony. See Jayne S. v. Kyle
S., 116 Conn. App. 690, 692, 978 A.2d 94 (2009). Contrary
to the defendant’s claim that ‘‘[t]he judge made her
decision based on feelings and on no actual facts
brought into evidence,’’ we conclude that there was
sufficient evidence to support the court’s finding that
the defendant presented a continuous threat of present
physical harm or injury to the plaintiff.
II
The defendant next claims that ‘‘[t]he judge was influ-
enced by the defendant’s invoking of the fifth amend-
ment and used it as evidence against him.’’
‘‘The plaintiff’s claim involves a question of law, over
which our review is plenary. See Rhode v. Milla, 287
Conn. 731, 737, 949 A.2d 1227 (2008) (whether invoca-
tion of fifth amendment privilege constitutes admissible
evidence is question of law over which our review is
plenary).’’ Greenan v. Greenan, 150 Conn. App. 289,
298 n.7, 91 A.3d 909, cert. denied, 314 Conn. 902, 99
A.3d 1167 (2014).
First, we note that the defendant’s claim rests upon
a seeming misunderstanding of the law involving the
fifth amendment right. Although a criminal defendant’s
invocation of the fifth amendment right prevents a court
from drawing an adverse inference, because of the
defendant’s refusal to testify, of the existence of a fact,
or facts, relating to the defendant’s guilt, such a prohibi-
tion does not apply to civil matters, unless there exists
an express statutory provision to the contrary. See In
re Samantha C., 268 Conn. 614, 635, 847 A.2d 883 (2004)
(‘‘The privilege does not . . . forbid the drawing of
adverse inferences against parties to civil actions when
they refuse to testify in response to probative evidence
offered against them. The prevailing rule is that the fifth
amendment does not preclude the inference where the
privilege is claimed by a party to a civil cause.’’ [Internal
quotation marks omitted.]). This reflects ‘‘the long-
standing principle that the trier of fact is entitled to
draw all fair and reasonable inferences from the facts
and circumstances [that] it finds established by the
evidence, which consist both of what was said, and
what naturally would have been.’’ (Internal quotation
marks omitted.) Id., 636.
As noted previously, the plaintiff sought to introduce
an audio recording that she had made of the defendant
purportedly engaged in a ‘‘verbal rant’’ against her for
eighteen minutes. The defendant objected to the court
hearing the recording, claiming that he did not know
he was being recorded at the time and that he objected
to having his voice recorded ‘‘surreptitiously,’’ but he,
at that point, did not invoke his fifth amendment right.
In response, the court informed the defendant that he
should keep in mind that the plaintiff had testified that
she had shared the recording with the Manchester
Police Department, that they directed her to the trial
court, and that there might be a criminal investigation
by the Manchester Police Department. The court further
informed the defendant that the restraining order hear-
ing was being recorded and that a prosecutor could ask
the court reporter for a transcript or recording of his
testimony, and informed him of his fifth amendment
right against self-incrimination. The defendant then
invoked his fifth amendment right. The court later
stated: ‘‘I advised him of his fifth amendment right not
to incriminate himself, and I infer from his objection
that there is stuff on that tape he doesn’t want this
court to hear.’’ The court did not specifically state that
it was drawing any adverse inference against the defen-
dant because he objected to the admission of the
recording into evidence.7 Even if we were to conclude
that the court did draw an erroneous adverse inference
from the defendant’s objection to the admission of evi-
dence, it was harmless error because there also was
other sufficient evidence of the defendant’s conduct,
including the plaintiff’s testimony and the testimony
of Clemons.
III
Finally, the defendant claims that the court applied an
incorrect standard of proof in granting the restraining
order. Specifically, he argues that the court improperly
used the standard of ‘‘just tipping the scales’’ in
determining that the plaintiff was entitled to a
restraining order pursuant to § 46b-15.
‘‘The issue of whether the court held the parties to
the proper standard of proof is a question of law. When
issues in [an] appeal concern questions of law, this
court reviews such claims de novo.’’ (Internal quotation
marks omitted.) Satti v. Kozek, 58 Conn. App. 768, 771,
755 A.2d 333, cert. denied, 254 Conn. 928, 761 A.2d
755 (2000).
In a civil dispute, the usual standard of proof
employed by the trier of fact is the preponderance of
the evidence. Goldstar Medical Services, Inc. v. Dept.
of Social Services, 288 Conn. 790, 819, 955 A.2d 15 (2008)
(‘‘in this state, proof by preponderance of the evidence
is the ordinary civil standard of proof’’ [internal quota-
tion marks omitted]); see State v. Davis, 229 Conn.
285, 295–96, 641 A.2d 370 (1994) (‘‘our determination
is guided by the general rule that when a civil statute
is silent as to the applicable standard of proof, the
preponderance of the evidence standard governs fac-
tual determinations required by that statute’’). In the
present case, the plaintiff applied for a civil restraining
order under § 46b-15. Because § 46b-15 is silent as to
the applicable standard of proof, the preponderance of
the evidence standard applies. Indeed, it is the common
and correct practice for our trial courts to employ the
preponderance of the evidence standard in cases involv-
ing domestic violence restraining orders. See, e.g., Fati-
canti v. Faticanti, Superior Court, judicial district of
Tolland, Docket No. FA-XX-XXXXXXX-S (May 11, 2018)
(in order to be entitled to domestic violence restraining
order under § 46b-15 [a], applicant must establish con-
tinuous threat of present physical pain or injury by
preponderance of evidence); State v. Hollander, Supe-
rior Court, judicial district of New London, Docket No.
CR-XX-XXXXXXX-S (April 6, 2015) (60 Conn. L. Rptr. 85)
(‘‘[a] civil restraining order is premised on a finding of
what is in the best interests of the victim given threaten-
ing or assaultive behavior of the defendant as estab-
lished by a fair preponderance of the evidence’’).
At the conclusion of the hearing, the court informed
the parties that, because it was a civil proceeding, the
plaintiff was required to ‘‘tip the scales’’—a colloquial-
ism often used by our courts to refer to the preponder-
ance of the evidence standard of proof.8 We conclude
as a matter of law that the court properly used the
preponderance of the evidence standard to weigh the
evidence in the hearing for a domestic violence
restraining order.
The judgment is affirmed.
* In accordance with our policy of protecting the privacy interests of an
applicant for a restraining order, we decline to identify the applicant or
others through whom the applicant’s identity may be ascertained.
1
General Statutes § 46b-15 (a) provides in relevant part: ‘‘Any family or
household member . . . who has been subjected to a continuous threat of
present physical pain or physical injury, stalking or a pattern of threatening
. . . by another family or household member may make an application to
the Superior Court for relief under this section. . . .’’
2
The plaintiff failed to file a brief with this court. We, therefore, have
considered the appeal solely on the basis of the defendant’s brief, oral
argument, and the record. See Schettino v. Labarba, 82 Conn. App. 445, 446
n.2, 844 A.2d 923 (2004).
3
The plaintiff’s life partner, the defendant’s father, passed away on Decem-
ber 14, 2017.
4
The basis of the defendant’s objection was: ‘‘Well, I reject being—having
anything of my voice recorded surreptitiously.’’
5
Although the defendant invoked his fifth amendment right with respect
to the contents of the recording, he continued to testify about matters other
than the recording.
6
According to both parties, at the time of the hearing, the defendant was
appealing an eviction order by the housing court.
7
Our Supreme Court has determined that ‘‘an adverse inference cannot
supply proof of a material fact; it merely allows the fact finder to weigh
facts already in evidence.’’ In re Samantha C., supra, 268 Conn. 665.
8
See, e.g., In re Samantha C., supra, 268 Conn. 666 (‘‘[a]lthough it is true
that the respondents faced a difficult choice in the present case, namely,
choosing whether to expose themselves to cross-examination or risking that
an adverse inference might tip the scales in the petitioner’s favor, that choice
was preferable to no choice at all’’).