K. D. v. D. D. ( 2022 )

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K. D. v. D. D.*
(AC 44842)
Bright, C. J., and Alexander and Lavine, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
granting the plaintiff’s application for a civil restraining order pursuant
to statute (§ 46b-15). At an evidentiary hearing, the plaintiff testified
that there was a pending action for a dissolution of marriage between
the parties and that she had been increasingly afraid of the defendant.
The plaintiff testified that one evening, when she went to a restaurant
with a group of people, she saw the defendant approach the hostess
stand, he stared at her with a furrowed brow, locked eye contact with
her, and that he seemed very agitated in his physical movements. After
the defendant left the restaurant, he sent various text messages and
emails to the plaintiff regarding the encounter. The trial court granted
the application for a civil restraining order against the defendant, finding
that the defendant’s conduct created a pattern of threatening. On the
defendant’s appeal to this court, held that the trial court erred in failing
to apply an objective standard to its determination when it issued the
civil restraining order based on the pattern of threatening provision of
§ 46b-15 (a): the court viewed the evidence through the lens of the
plaintiff’s subjective reaction to the defendant’s conduct, namely, her
resulting fear, and stated that the plaintiff’s testimony indicated a tone
of hostility that she felt frightened her, and, although the reaction of
an applicant can help provide context, subjective fear of an applicant
is not a statutory requirement under § 46b-15, and, instead, what is
required is the occurrence of conduct that constitutes a pattern of
threatening; moreover, § 46b-15 does not contain any statutory language
requiring a subjective-objective analysis, and there is nothing in the
statutory language indicating that the legislature intended for courts to
issue civil restraining orders under the pattern of threatening portion
of § 46b-15 in situations other than where it is objectively reasonable
to conclude, based on context, that the defendant had subjected the
alleged victim to a pattern of threatening.
Argued April 6—officially released September 6, 2022
Procedural History
Application for a civil restraining order, brought to
the Superior Court in the judicial district of Stamford-
Norwalk, where the court, Hon. Edward R. Karazin,
Jr., judge trial referee, granted the application and
issued an order of protection, from which the defendant
appealed to this court. Reversed; order vacated.
Reuben S. Midler, for the appellant (defendant).
Opinion
LAVINE, J. The defendant, D. D., appeals from the
judgment of the trial court granting the application for
a civil restraining order pursuant to General Statutes
§ 46b-151 filed by the plaintiff, K. D. On appeal, the
defendant claims that the court improperly issued the
civil restraining order because it applied an incorrect
legal standard when it determined that he had subjected
the plaintiff to a pattern of threatening. We agree and,
accordingly, reverse the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. On June 29, 2021, the plaintiff filed
an application for relief from abuse pursuant to § 46b-
15, seeking a civil restraining order against the defen-
dant. On that same day, the court issued an ex parte
restraining order against the defendant, which was to
expire July 6, 2021, and scheduled a hearing for July 6,
2021. At the July 6, 2021 evidentiary hearing, the self-
represented plaintiff testified that there was a pending
action for a dissolution of marriage between the parties
and that she had been ‘‘increasingly afraid’’ of the defen-
dant. She testified that on the evening of June 24, 2021,
she went to a restaurant with a group of others, includ-
ing friends of the defendant.2 The plaintiff ‘‘felt [the
defendant] behind [her] shoulder,’’ and noticed that ‘‘the
hairs on the back of [her] neck stood up.’’ In her testi-
mony, the plaintiff described her encounter with the
defendant at the restaurant as follows: ‘‘I saw him
approaching the hostess stand very physically tense.
He stared at me with his furrowed brow twitching and
locked eye contact for, what, I mean, twenty-five sec-
onds and I was frozen. He seemed very agitated in his
physical movements.’’ She further testified that during
the incident the defendant’s shoulders were ‘‘very high’’
and that he was ‘‘leaning in aggressively with his hands
clenched and tight and it seemed like he was breathing
very heavy.’’ She explained that the defendant then
moved away from the hostess desk ‘‘in a wide circle
behind [her] slowly.’’ She stated that she was ‘‘in shock.’’
The defendant testified that he went to the restaurant
in response to an invitation from a friend, but when
the plaintiff arrived he became ‘‘very uncomfortable’’
and did not ‘‘feel safe’’ and, therefore, walked from the
hostess stand area to the lobby where he waited for
an Uber.
Subsequent electronic communications from the
defendant to the plaintiff were admitted as a full exhibit
at the hearing (exhibit 1). The plaintiff testified that,
after the defendant left the restaurant, he communi-
cated with her electronically and she detailed that while
she was still at the restaurant, she received a text mes-
sage from the defendant at 8:33 p.m., stating: ‘‘Enjoy
your date!’’3 She further testified that the defendant sent
her a series of emails on the night of June 25 and in
the early morning of June 26, 2021. The first email
stated: ‘‘You have ‘fucked’ all these ‘dinner guests’ while
making me watch and abusing me. I will show you. Is
that (unsafe) for those you have violated? Let me know
when I should divulge your penchant for underage peo-
ple.’’ In a subsequent email, the defendant stated, ‘‘by
underage, I meant legally permissible but young.’’ In
another email, the defendant explained that it was
‘‘unexpected’’ that the plaintiff would be at the restau-
rant and that, ‘‘upon seeing you, I left immediately. I
hope to never accidentally run into you again.’’ The
final email in exhibit 1 concerned childcare issues.
In an oral ruling issued at the conclusion of the July
6, 2021 hearing, the court granted the plaintiff’s applica-
tion for a civil restraining order. The court stated that
the plaintiff’s testimony ‘‘indicated a tone of hostility
which the plaintiff felt frightened her. The defendant,
the husband, says no hostility, he left and took an Uber.
He did indicate he left because he did not feel comfort-
able to be in the same space as she was. He did not let
it end there, however, as he sent the messages in exhibit
1. The wife, the applicant, testified at the restaurant
that he stared at her, made eye contact for twenty-five
seconds, leaned in aggressively making eye contact,
and furrowing his brow, and he was breathing heavily
and he was fussing as he walked behind her. The court
finds that the plaintiff[’s] exhibit 1, substantiates the
conditions at the restaurant. If all he wanted to do
was leave, he could have done so, but he extended the
evening with the [plaintiff] in exhibit 1. In exhibit 1 it
says, [enjoy] your date and the use of the F word and
the reference to others involved leads this court to the
conclusion that the testimony of the wife, the applicant,
is more credible. The court finds the conduct of the
[defendant] creates a pattern of threatening.’’4 The court
issued a restraining order, which expired on July 5,
2022.5 This appeal followed.6
‘‘[T]he standard of review in family matters is well
settled.7 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 pre-
sented. . . . In determining whether a trial court has
abused its broad discretion in domestic relations mat-
ters, we allow every reasonable presumption in favor
of the correctness of its action. . . . Our deferential
standard of review, however, does not extend to the
court’s interpretation of and application of the law to
the facts. It is axiomatic that a matter of law is entitled
to plenary review on appeal. . . .
‘‘[I]ssues of statutory construction raise questions of
law, over which we exercise plenary review. . . .
When construing a statute, [o]ur fundamental objective
is to ascertain and give effect to the apparent intent of
the legislature. . . . In other words, we seek to deter-
mine, in a reasoned manner, the meaning of the statu-
tory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . General Statutes § 1-2z directs this
court to first consider the text of the statute and its
relationship to other statutes to determine its meaning.
If, after such consideration, the meaning is plain and
unambiguous and does not yield absurd or unworkable
results, we shall not consider extratextual evidence of
the meaning of the statute.’’ (Citations omitted; footnote
in original; internal quotation marks omitted.) Princess
Q. H. v. Robert H., 150 Conn. App. 105, 111–12, 89
A.3d 896 (2014). Consequently, our standard of review
depends on the nature of the defendant’s claim on
appeal.
The defendant claims that the court erred in failing
to apply an objective standard to its determination when
it issued a civil restraining order based on the ‘‘pattern
of threatening’’ provision in § 46b-15.8 We agree.9
The defendant’s claim requires us to determine the
appropriate standard for assessing a pattern of threaten-
ing under § 46b-15 (a) and whether the trial court
applied the required standard. Our standard of review
is plenary. See Putman v. Kennedy, 104 Conn. App. 26,
31, 932 A.2d 434 (2007), cert. denied, 285 Conn. 909,
940 A.2d 809 (2008).
Section 46b-15 (a) provides in relevant part: ‘‘Any
family or household member . . . who has been sub-
jected to a continuous threat of present physical pain
or physical injury, stalking or a pattern of threatening,
including, but not limited to, a pattern of threatening,
as described in section 53a-62, by another family or
household member may make an application to the
Superior Court for relief under this section. . . .’’ In
§ 46b-15 (a), the legislature incorporated, by reference,
the definition of threatening in the second degree under
General Statutes § 53a-62 of the Penal Code. Section
53a-62 provides in relevant part: ‘‘(a) A person is guilty
of threatening in the second degree when: (1) By physi-
cal threat, such person intentionally places or attempts
to place another person in fear of imminent serious
physical injury, (2) (A) such person threatens to commit
any crime of violence with the intent to terrorize
another person, or (B) such person threatens to commit
such crime of violence in reckless disregard of the risk
of causing such terror . . . .’’ In interpreting § 53a-62,
this court has stated that ‘‘[t]rue threats are among
the limited areas of speech which properly may be
restricted without violating the protections of the first
amendment.’’ (Internal quotation marks omitted.) State
v. Carter, 141 Conn. App. 377, 399, 61 A.3d 1103 (2013),
aff’d, 317 Conn. 845, 120 A.3d 1229 (2015); see also State
v. Krijger, 313 Conn. 434, 450, 97 A.3d 946 (2014).
The definition of ‘‘pattern of threatening’’ in § 46b-15
is not limited to, but, rather, is broader than the defini-
tion of threatening provided in § 53a-62. Section 46b-
15 does not define the ambit of this broader definition
and, therefore, we look to commonly approved usage
as expressed in dictionaries. See Princess Q. H. v.
Robert H., supra, 150 Conn. App. 113 (‘‘[i]f a statute
or regulation does not sufficiently define a term, it is
appropriate to look to the common understanding of the
term as expressed in a dictionary’’ (internal quotation
marks omitted)). According to common usage, the term
‘‘threat’’ is defined in Merriam-Webster’s Collegiate Dic-
tionary (11th Ed. 2014), as ‘‘an expression of intention
to inflict evil, injury, or damage,’’; id., p. 1302; and is
defined in Webster’s Third New International Diction-
ary (1993), as ‘‘an expression of an intention to inflict
evil, injury, or damage on another usu[ally] as retribu-
tion or punishment for something done or left undone
. . . .’’ Id., p. 2382. These definitions are not particularly
useful in determining the proper standard to be applied.
Significantly, however, in § 46b-15 (a), the legislature
specifically referenced the threatening in the second
degree statute, pursuant to which threats are assessed
using an objective standard. See, e.g., State v. Taveras,
342 Conn. 563, 572, 271 A.3d 123 (2022) (true threats
governed by objective standard); see also State v. Mead-
ows, 185 Conn. App. 287, 302–308, 197 A.3d 464 (2018)
(rejecting argument of defendant, who was convicted
of violating § 53a-62, that true threats doctrine requires
defendant to possess subjective intent to threaten vic-
tim), aff’d sub nom. State v. Cody M., 337 Conn. 92, 259
A.3d 576 (2020). By so doing, the legislature indicated
an intent that an objective standard should be used
when assessing patterns of threatening under § 46b-15.
In the present case, the court viewed the evidence
through the lens of the plaintiff’s subjective reaction to
the defendant’s conduct, namely, her resulting fear, and
stated that the plaintiff’s testimony ‘‘indicated a tone
of hostility which the plaintiff felt frightened her.’’
Although the reaction of an applicant can help provide
context, subjective fear of an applicant is not a statutory
requirement under § 46b-15. In interpreting a provision
similar for our purposes, in Putman v. Kennedy, supra,104 Conn. App. 34–35, this court determined, when
interpreting the phrase ‘‘continuous threat’’ under
§ 46b-15, that, although it is appropriate for a trial court
to consider an applicant’s subjective fear, it is not statu-
torily required for a finding of a ‘‘continuous threat’’
under § 46b-15. This reasoning in Putman applies with
equal weight to the provision of § 46b-15 at issue in the
present case. It is not a requirement of § 46b-15 that
an alleged threat causes an applicant any fear. What is
required is the occurrence of conduct that constitutes
a pattern of threatening. The legislature knows how to
require a subjective-objective analysis, as it expressly
did so when defining ‘‘fear’’ in the context of the issu-
ance of protective orders for victims of stalking under
General Statutes § 46b-16a. See L. H.-S. v. N. B., 341
Conn. 483, 489–95, 267 A.3d 178 (2021) (fear under
§ 46b-16a requires subjective-objective analysis); see
also McCoy v. Commissioner of Public Safety, 300
Conn. 144, 155, 12 A.3d 948 (2011) (‘‘when the legislature
chooses to act, it is presumed to know how to draft
legislation consistent with its intent and to know of all
other existing statutes and the effect that its action or
nonaction will have upon any one of them’’ (internal
quotation marks omitted)). Section 46b-15, unlike § 46b-
16a, does not contain any statutory language requiring
a subjective-objective analysis. There is nothing in the
statutory language indicating that the legislature
intended for courts to issue civil restraining orders
under the pattern of threatening portion of § 46b-15 in
situations other than where it is objectively reasonable
to conclude, based on context, that the defendant had
subjected the alleged victim to a pattern of threatening.
We, therefore, conclude that, although a court may con-
sider the subjective reaction of an alleged victim, the
court must apply an objective standard. See State v.
Krijger, supra, 313 Conn. 450 (‘‘In the context of a
threat of physical violence, [w]hether a particular state-
ment may properly be considered to be a [true] threat
is governed by an objective standard—whether a rea-
sonable person would foresee that the statement would
be interpreted by those to whom the maker communi-
cates the statement as a serious expression of intent
to harm or assault. . . . [A]lleged threats should be
considered in light of their entire factual context,
including the surrounding events and reaction of the
listeners.’’ (Internal quotation marks omitted.)).
Accordingly, we conclude that the court misconstrued
the statute and applied an incorrect legal standard by
limiting its analysis to a subjective standard rather than
applying an objective standard in granting a restraining
order on the basis that the defendant had subjected the
plaintiff to a pattern of threatening under § 46b-15.
The judgment is reversed and the case is remanded
with direction to vacate the civil restraining order.
In this opinion the other judges concurred.
* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as
amended by the Violence Against Women Act Reauthorization Act of 2022,
Pub. L. No. 117-103, § 106, 136 Stat. 49; we decline to identify any person
protected or sought to be protected under a protection order, protective
order, or a restraining order that was issued or applied for, or others through
whom that party’s identity may be ascertained.
1
We note that § 46b-15 has been amended by the legislature since the
events underlying this appeal. See Public Acts 2021, No. 21-78; see also
General Statutes (Supp. 2022) § 46b-15. Hereinafter, unless otherwise indi-
cated, all references to § 46b-15 in this opinion are to the current revision
of the statute.
2
The defendant testified that he had been paying for the plaintiff to stay
at the hotel where the restaurant was located, but that prior to June 24,
2021, he had been notified by the hotel that his hotel reservation for the
plaintiff had been cancelled and that she no longer was staying there. The
plaintiff testified that she cancelled the defendant’s hotel reservation for
her at the hotel and put the reservation under a different name.
3
The plaintiff received the same text message twice.
4
In its decision, the court inadvertently stated that the defendant texted
‘‘find’’ your date.
5
Although the restraining order expired on July 5, 2022, the defendant’s
appeal is not moot due to adverse collateral consequences. See L. D. v. G.
T., 210 Conn. App. 864, 869 n.4, 271 A.3d 674 (2022).
6
The plaintiff did not file a brief in this appeal. We, therefore, ordered
that this appeal shall be considered on the basis of the record, the defendant’s
brief and appendix, and oral argument.
7
‘‘Section 46b-15 is part of title 46b, ‘Family Law,’ and chapter 815a,
‘Family Matters,’ and, as such, is specifically included as a court proceeding
in a family relations matter. See General Statutes § 46b-1 (5).’’ Princess Q.
H. v. Robert H., 150 Conn. App. 105, 111 n.3, 89 A.3d 896 (2014).
8
The defendant also argues that the trial court lacked subject matter
jurisdiction to entertain the plaintiff’s application for a civil restraining order
because the plaintiff’s attached affidavit was not made under oath. ‘‘We
have long held that because [a] determination regarding a trial court’s subject
matter jurisdiction is a question of law, our review is plenary. . . . [S]ubject
matter jurisdiction involves the authority of the court to adjudicate the type
of controversy presented by the action before it . . . and a judgment ren-
dered without subject matter jurisdiction is void.’’ (Citation omitted; internal
quotation marks omitted.) Labissoniere v. Gaylord Hospital, Inc., 199 Conn.
App. 265, 275–76, 235 A.3d 589, cert. denied, 335 Conn. 968, 240 A.3d 284(2020), and cert. denied, 335 Conn. 968, 240 A.3d 285 (2020). Governor Ned
Lamont’s Executive Order 7Q, dated March 30, 2020, which was extended
through June 30, 2021, by Executive Order 12B, and was in place at the
time of the plaintiff’s June 28, 2021 affidavit, allowed for remote notarization.
There is no indication in the record that the plaintiff’s affidavit was notarized
remotely or otherwise. The restraining order specifically referenced state-
ments made by the plaintiff in her unsworn affidavit, which affidavit was
not admitted as an exhibit at the hearing, despite that, during the hearing,
the court struck from the record portions of the plaintiff’s argument that
were based on statements she had made in her unsworn affidavit that were
not also testified to at the hearing. Although it is axiomatic that allegations
not in evidence cannot properly be relied upon to support a judgment, we
need not address the issue further as it does not impact the subject matter
jurisdiction of the trial court. The defendant has not directed us to any case
law, nor are we aware of any, stating that the attachment of an unsworn
affidavit to an application for a restraining order somehow deprives a court
of subject matter jurisdiction over that application. We, therefore, reject the
defendant’s argument that the trial court lacked subject matter jurisdiction.
9
The defendant raises additional arguments in support of his claim, which
we do not address in light of our resolution of his principal argument.