D. S. v. R. S. ( 2020 )

***********************************************
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.
***********************************************
D. S. v. R. S.*
(AC 43109)
Bright, Devlin and Harper, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
granting the application for relief from abuse filed by his daughter, the
plaintiff, and issuing a domestic violence restraining order against him.
The trial court granted the plaintiff’s ex parte application for relief from
abuse on behalf of herself, her minor child and her mother, and issued
a restraining order against the defendant that required him, inter alia,
not to harass, follow, interfere with or stalk the plaintiff or her minor
child. The court thereafter conducted a hearing on whether to extend
the ex parte order, at which the plaintiff testified that the defendant’s
actions were affecting the child’s behavior and schoolwork, and that
the child did not want to be around the defendant and was afraid that
the defendant was following him. The defendant testified that he went
to the area across the street from the child’s school bus stop two to
three times a week and waved and said hello to the child. The court
rendered judgment denying the continuation of the ex parte order as it
pertained to the plaintiff and continuing it as to the child. In continuing
the ex parte order as to the child, the court stated that, rather than
using the dictionary definition of stalking, it would use the statutory
(§ 53a-181d) definition set forth in the crime of stalking in the second
degree, which defined stalking as to follow, lie in wait for, observe,
surveil, communicate with or to send unwanted gifts to a person that
results in emotional distress. On appeal, the plaintiff claimed that the
trial court used the wrong definition of stalking and that it should have
used the definition of stalking in Princess Q. H. v. Robert H. (150 Conn.
App. 105), and erroneously relied on testimony that the plaintiff gave
on behalf of the child. Held:
1. The trial court did not err in issuing the domestic violence restraining order
against the defendant: although the court’s reference to the definition
in § 53a-181d was incorrect, that narrower definition was not inconsis-
tent with the common understanding of stalking relied on in Princess
Q. H., in which the court articulated a broader standard of stalking in
the civil protection order context than in the criminal context, and
evidence establishing that the defendant’s conduct met the criminal
standard was more than sufficient to satisfy the civil standard; moreover,
the court credited the plaintiff’s testimony that the defendant surveilled
her and the child and surreptitiously attempted to gather information
about the child from the plaintiff and her mother, and the court credited
the testimony of the plaintiff and her landlord that the defendant stood
across the street from the bus stop to see and to attempt to interact
with the child, who did not want the same with the defendant.
2. The defendant’s claim that the trial court erroneously relied on testimony
that the plaintiff gave on behalf of the child was unreviewable, the
defendant having failed to properly preserve his objection at the hearing:
although the defendant objected to the plaintiff’s testimony about the
child’s fears, the court overruled the objection, which was not stated
precisely, and the defendant made no further objections specific to that
claim after he declined the court’s invitation to have the child testify;
moreover, as there was substantial evidence before the court that estab-
lished that the child feared the defendant, any error in the court’s having
overruled the defendant’s objection to such testimony was harmless.
Argued March 12—officially released July 14, 2020
Procedural History
Application for relief from abuse, brought to the
Superior Court in the judicial district of Danbury, where
the court, Hon. Sidney Axelrod, judge trial referee,
granted the application in part and issued a restraining
order, from which the defendant appealed to this
court. Affirmed.
Norman J. Voog, for the appellant (defendant).
Opinion
HARPER, J. The defendant, R. S., appeals from the
judgment of the trial court granting the application of
the self-represented plaintiff, D. S., for relief from abuse
and issuing a domestic violence restraining order pursu-
ant to General Statutes § 46b-15.1 On appeal, the defen-
dant claims that the court incorrectly based its decision
on (1) the wrong definition of stalking and (2) testimony
of the plaintiff given on behalf of her minor child (child).
We affirm the judgment of the trial court.2
The record reveals the following relevant facts and
procedural history. On May 29, 2019, the plaintiff filed
an ex parte application for relief from abuse against
the defendant, pursuant to § 46b-15, on behalf of herself,
her child, and her mother. The defendant is the plain-
tiff’s father and the former husband of the plaintiff’s
mother. In her application, the plaintiff averred under
oath that the defendant engaged in threatening behav-
ior, stalking, and harassment. Specifically, she alleged
that the defendant had continued to try to make contact
with the child (1) by showing up at the child’s school
bus stop, school, summer camp, and Cub Scout meet-
ings, and by watching him from a distance, (2) by tres-
passing onto the plaintiff’s property, and (3) by using
the ‘‘Find My iPhone’’3 application on the child’s iPad
in order to locate the plaintiff’s new home. The plaintiff
further alleged that the child is afraid of the defendant
and, more specifically, afraid that the defendant will
try to take him away from the plaintiff. According to
the plaintiff, the child gets ‘‘extremely upset’’ whenever
the defendant arrives at the bus stop, school, and other
events, and the child wants no further contact with the
defendant. Additionally, the plaintiff alleged that the
defendant sent harassing text messages to the plaintiff’s
mother and sent threatening letters, e-mails, and text
messages to the plaintiff.
On May 29, 2019, the court issued an ex parte
restraining order that the defendant, among other
things, not harass, follow, interfere with, or stalk the
plaintiff and her child. The court further ordered that
the defendant stay away from the plaintiff’s home, that
he stay 100 yards away from the plaintiff and her child,
and that he stay 100 yards away from the child’s bus
stop. The court set a hearing date of June 7, 2019, in
order to determine whether to extend the order.
At the hearing, both the defendant and the self-repre-
sented plaintiff appeared, testified, and submitted evi-
dence on the issue of the plaintiff’s application for relief
from abuse. During the hearing, the plaintiff’s testi-
mony, in large part, mirrored the statements she had
made in her application. More specifically, she testified
that the child did not want the defendant at his bus
stop; the child was always looking over his shoulder,
afraid that the defendant was following him; the defen-
dant appeared at the child’s new bus stop, despite not
having been told previously about the new bus stop
location; the child, once at the bus stop, was afraid to
exit the car until the bus arrived; the child has told
the plaintiff that he does not want to be around the
defendant; the defendant showed up uninvited to the
child’s Cub Scout meeting and was asked to leave
because his presence upset the child; the defendant’s
actions are affecting the child’s behavior and school-
work; and the defendant, despite the plaintiff’s instruc-
tions to cease and desist, continued to stand near the
bus stop to wave at and speak to the child. The plaintiff
also testified that one of her child’s friends, during a
sleepover at her house, told her that her child was afraid
that the defendant was going to take him away and was
crying about it. She further testified that her mother
told her that, when the plaintiff was not at home, her
child would close the shades because he was afraid
that the defendant would show up at the house. The
plaintiff also testified that since the issuance of the
restraining order, the child is the calmest he has ever
been but that he still closes the window shades.
The defendant also testified at the hearing. Specifi-
cally, he admitted to going to the area across the street
from the bus stop, with balloons, two to three times
per week. According to the defendant, he waves and
says ‘‘hello’’ as the child enters and exits the bus. The
defendant further testified that he stands out in the
open as he waits for and waves at the child, and some-
times parks his car and stands on the property of a
neighbor, with the neighbor’s permission.
Gail Howard, the plaintiff’s landlord, also testified at
the hearing. According to Howard, the defendant waits
at the bottom of the driveway for the child to get off
the bus. She further testified that when the child sees
the defendant, the child does not smile and he
‘‘behav[es] in a tense fashion.’’ Howard also testified
that she has seen the child ‘‘rush away from the
defendant.’’
The plaintiff also entered into evidence several exhib-
its, including a series of text messages from the defen-
dant to the plaintiff’s mother, exhibit 1, and a report
she filed with the Redding Police Department, exhibit
4. The text messages show the defendant’s efforts to
gain information surreptitiously from the plaintiff’s
mother about the child’s travels to school. Additionally,
the text messages show that the defendant gave the
plaintiff’s mother $1400 for that information. The report
filed by the plaintiff sets forth that the child does not
want to see the defendant, that the child refuses to
acknowledge the defendant, and that the defendant’s
conduct ‘‘ha[s] become emotionally draining and dam-
aging to my child.’’
At the conclusion of the evidence, the court bifur-
cated final arguments and its decision regarding the
extension of the restraining order into two parts: the
application of the order as it applied to the plaintiff,
and the order as it applied to the child. After the court
heard argument with regard to the restraining order as
it applied to the plaintiff, the court denied the continua-
tion of the order as it applied to her. Prior to hearing
argument about the restraining order as it applied to
the child, the court stated that it was not using the
dictionary definition of stalking but, rather, the statu-
tory definition set forth in General Statutes § 53a-181d,
which defines the crime of stalking in the second
degree.4 Specifically, the court stated that stalking
means ‘‘follows, lies in wait for, observes, surveils, com-
municates with or sends unwanted gifts to a person
that results in suffering emotional distress.’’
The court then heard argument with regard to the
restraining order as it applied to the child. At the conclu-
sion of oral argument, the court stated: ‘‘I’m continuing
the order insofar as it relates to the minor child on the
grounds that there’s been stalking as a result of the
course of conduct by the defendant in which two or
more times he has laid in wait for, observed or sur-
veilled, or sent unwanted gifts, and [that] has resulted
in emotional distress to the child. . . . [O]ne, [the
defendant is] to stay 100 yards away from the bus stop
of the minor child; two, he’s to stay 100 yards away
from the minor child; three, he’s not to stalk the minor
child.’’ This appeal followed. Additional facts will be
set forth as necessary.
I
The defendant claims that the trial court erred when
it issued a domestic violence restraining order pursuant
to the definition of stalking provided in § 53a-181d and
not the definition provided by this court in Princess Q.
H. v. Robert H., 150 Conn. App. 105, 115, 89 A.3d 896(2014). We agree that the court relied on the statutory
definition of stalking rather than the common meaning
of the word; however, following our careful review of
the record, we cannot conclude that the court erred in
concluding that the defendant engaged in stalking as
to the child.
We first set forth the well settled standard of review
in family matters, along with other relevant legal princi-
ples. ‘‘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. . . . 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 convic-
tion that a mistake has been committed. . . . Our def-
erential 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.’’ (Citation omitted;
internal quotation marks omitted.) Id., 111–12.
Additionally, as we often have noted, ‘‘[w]e do not
retry the facts or evaluate the credibility of witnesses.’’
(Internal quotation marks omitted.) Margarita O. v.
Fernando I., 189 Conn. App. 448, 463, 207 A.3d 548,
cert. denied, 331 Conn. 930, 207 A.3d 1051, cert. denied,
U.S. , 140 S. Ct. 72, 205 L. Ed. 2d 130 (2019).
Rather, ‘‘[i]n 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.) Kathrynne S. v. Swetz, 191 Conn. App. 850, 857,
216 A.3d 858 (2019).
Furthermore, given the nature of this appeal, it is
important to underscore that ‘‘[w]e have long held that
this court may affirm a trial court’s proper decision,
although it may have been founded on a wrong reason.’’
(Internal quotation marks omitted.) Geremia v. Gere-
mia, 159 Conn. App. 751, 779, 125 A.3d 549 (2015);
see also Flagg Energy Development Corp. v. General
Motors Corp., 244 Conn. 126, 151, 709 A.2d 1075 (1998)
(appellate court not required to reverse trial court ruling
that reached correct result but for wrong reason), over-
ruled in part on other grounds by Ulbrich v. Groth, 310
Conn. 375, 412 n.32, 78 A.3d 76 (2013).
Stalking is not defined in § 46b-15. In Princess Q.
H. v. Robert H., supra, 150 Conn. App. 105, this court
analyzed § 46b-15 (a). This court reasoned: ‘‘The legisla-
ture did not provide a definition of stalking as that word
is used in § 46b-15 (a). Although it could have done so,
it did not incorporate by reference the definitions of
stalking that are contained in the Penal Code, specifi-
cally, § 53a-181d . . . .’’ (Footnotes omitted; internal
quotation marks omitted.) Id., 114–15. This court further
stated that ‘‘[w]e interpret the statute in accordance
with these commonly accepted definitions, satisfied
that the plain meaning of the statute does not yield an
unworkable or absurd result. We reject . . . reliance
on the narrower definitions of stalking codified in our
Penal Code. In so doing, we are mindful that our legisla-
ture reasonably may have chosen to rely on a narrower
definition of stalking in delineating criminal liability,
while deciding that a broader definition of stalking was
appropriate in the dissimilar context of affording imme-
diate relief to victims under § 46b-15.’’ Id., 115. As a
result, this court looked to and provided the commonly
approved usage of the word and defined stalking as
follows: ‘‘[T]he act or an instance of following another
by stealth. . . . The offense of following or loitering
near another, often surreptitiously, to annoy or harass
that person or to commit a further crime such as assault
or battery. Black’s Law Dictionary (9th Ed. 2009). To
loiter means to remain in an area for no obvious reason.
Merriam-Webster’s Collegiate Dictionary (11th Ed.
2011).’’ (Internal quotation marks omitted.) Princess Q.
H. v. Robert H., supra, 115.
Employing the aforementioned legal principles along
with the definition of stalking as it is commonly defined
and applied, this court held, in Princess Q. H., that the
trial court did not abuse its discretion when it concluded
‘‘that the defendant’s conduct in driving past [the plain-
tiff’s] home, turning around, and immediately driving
past [the plaintiff’s] home a second time constituted an
act of stalking.’’ Id., 116. With Princess Q. H. and our
standard of review in mind, we now turn to the defen-
dant’s claim.
At the § 46b-15 hearing in the present case, the court
stated that it would use the definition of stalking set
forth in § 53a-181d. In its oral decision, the court found,
consistent with the plaintiff’s testimony, that the defen-
dant ‘‘two or more times . . . has laid in wait for,
observed or surveilled, or sent unwanted gifts, and
[that] has resulted in emotional distress to the child.’’
Consistent with this court’s decision in Princess Q.
H., we note that the trial court’s reference to the statu-
tory definition of stalking was incorrect. The narrower
statutory definition set forth in § 53a-181d, however, is
not inconsistent with the common understanding of
stalking relied on by this court in Princess Q. H. We
further note that, in Princess Q. H., this court intention-
ally articulated a broader standard of stalking in the
civil protection order context than the one employed
in the criminal context. See Princess Q. H. v. Robert
H., supra, 150 Conn. App. 115. Accordingly, evidence
establishing that the defendant’s conduct met the crimi-
nal standard of stalking is more than sufficient to satisfy
the civil standard. In other words, in proving the requi-
site elements of the criminal definition, the elements
of the civil definition necessarily are satisfied.
It is clear from the record that the court credited the
plaintiff’s testimony that the defendant had surveilled
her and her child, perhaps surreptitiously, in order to
ascertain the location of the plaintiff’s new home and
the child’s new bus stop, despite the plaintiff’s having
told the defendant to leave the child alone. The court
also credited the testimony of the plaintiff and Howard
that the defendant stood across the street from the bus
stop, two to three times a week, in order to see and
attempt to interact with the child, who did not want
the same with the defendant. The evidence also shows
the defendant’s surreptitious attempts to gather infor-
mation from the plaintiff’s mother about the child’s
travels to school. We see little difference between the
defendant’s actions of surveilling the child from near
the plaintiff’s home and the defendant’s actions in Prin-
cess Q. H. of repeatedly driving past the plaintiff’s home.
Consequently, we conclude that the defendant’s
actions, as specifically found by the trial court, consti-
tuted stalking as that term is commonly defined and
applied.
In light of the foregoing, including the court’s findings
and the breadth afforded the definition of stalking
espoused in Princess Q. H., we cannot conclude that
the court erred when it continued the restraining order
against the defendant as it pertains to the child.
II
The defendant also claims that the court erroneously
based its decision on testimony that the plaintiff gave
on behalf of the child. The defendant’s claim is eviden-
tiary in nature and, because he did not properly preserve
his objection at the hearing, we decline to review it.
Furthermore, in light of the other evidence submitted
to the trial court, without objection, the court’s admis-
sion of the limited testimony to which the plaintiff did
object, even if in error, was harmless.
Our Supreme Court has held that ‘‘[o]ur rules of prac-
tice make it clear that when an objection to evidence
is made, a succinct statement of the grounds forming
the basis for the objection must be made in such form
as counsel desires it to be preserved and included in
the record. . . . This court reviews rulings solely on
the ground on which the party’s objection is based.
. . . In objecting to evidence, counsel must properly
articulate the basis of the objection so as to apprise
the trial court of the precise nature of the objection
and its real purpose, in order to form an adequate basis
for a reviewable ruling. . . . The purpose of such a
requirement is apparent since we have consistently
stated that we will not consider . . . evidentiary rul-
ings . . . where no claim of error was preserved for
review on appeal by proper objection and exception.
. . . Moreover, once the authority and the ground for
an objection is stated, our review of the trial court’s
ruling is limited to the ground asserted.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) State v. Braman, 191 Conn. 670, 684–85, 469
A.2d 760 (1983).
Additionally, if there were an erroneous evidentiary
ruling, ‘‘[b]efore a party is entitled to a new trial . . .
he or she has the burden of demonstrating that the
error was harmful. . . . The harmless error standard
in a civil case is whether the improper ruling would
likely affect the result.’’ (Internal quotation marks omit-
ted.) Iino v. Spalter, 192 Conn. App. 421, 431, 218 A.3d
152 (2019).
The following additional facts are relevant to our
review. Early in the plaintiff’s testimony, while testi-
fying that her child fears that the defendant will take
him away, the defendant’s counsel objected, stating,
‘‘how does she know—if the son has fears; doesn’t the
son have to say he has some type of fear?’’ Counsel
further argued that the defendant did not ‘‘want his
grandson to be quoted without any way of verifying it.’’
Following the objection, the court stated that if the
defendant wanted the child brought to court to testify,
the court would arrange to do so. The defendant
declined the court’s invitation. The court then overruled
the defendant’s objection. The plaintiff resumed her
testimony without any further objections by the defen-
dant specific to this claim, during direct examination
and cross-examination. Consequently, as previously
noted, the plaintiff testified, without objection, that her
child told her that he did not want the defendant at his
bus stop, that her mother told her that the child closed
the shades because he is afraid of the defendant, that
the child’s friend told the plaintiff that her child was
afraid that the defendant would take him away, that
the child was upset that the defendant showed up at
his Cub Scout meeting, and that the defendant’s actions
were affecting the child’s schoolwork and behavior.
The defendant also did not object to the admission
of exhibit 4, in which the plaintiff also described the
negative effects that the defendant’s conduct was hav-
ing on the child. Additionally, the defendant did not
object to Howard’s testimony regarding the child’s
efforts to avoid interacting with the defendant at the
bus stop. Furthermore, during oral argument before
this court, the defendant’s counsel conceded that he
did not object to the plaintiff’s testimony beyond his
initial objection.
The defendant’s objection, and subsequent argument
in support of that objection, is not a model of clarity—
he did not state the precise nature of his objection.
Although, in support of this claim, the defendant’s
appellate brief sets forth several arguments sounding
in hearsay, the defendant did not object to the testimony
of the plaintiff on hearsay grounds and, therefore,
makes this argument for the first time on appeal. The
question of whether the limited testimony of the plain-
tiff to which the defendant objected constituted hearsay
is not a matter properly before this court because ‘‘to
review [a] defendant’s [hearsay] claim, which has been
articulated for the first time on appeal and not before
the trial court, would result in a trial by ambuscade of
the trial judge. . . . We . . . do not address the merits
of [such a claim].’’ (Citation omitted; internal quotation
marks omitted.) State v. Braman, supra, 191 Conn. 685.
Furthermore, as noted, the court had before it sub-
stantial evidence, to which the defendant did not object,
that separately established that the child fears the
defendant. Thus, even if the court erred in overruling
the defendant’s objection to the plaintiff’s testimony
that her child told her that he fears the defendant, any
such error was harmless. See Iino v. Spalter, supra,
192 Conn. App. 438–44 (any error in admitting testimony
was harmless where defendant did not object to simi-
lar testimony).
Accordingly, because the defendant did not state the
specific reason for his objection to the plaintiff’s testi-
mony, we conclude that his claim is unpreserved and,
thus, unreviewable. We further conclude that any error
was harmless.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018); we decline to identify any party protected or sought to be protected
under a protective order or a restraining order that was issued or applied
for, or others through whom that party’s identity may be ascertained.
1
General Statutes § 46b-15 provides in relevant part: ‘‘Any family or house-
hold 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 did not file a brief in this appeal. We, therefore, decide the
appeal on the basis of the defendant’s brief and the record. See Murphy v.
Murphy, 181 Conn. App. 716, 721 n.6, 188 A.3d 144 (2018).
3
‘‘Find My iPhone’’ is a preinstalled smart phone application that utilizes
cell phone tower and satellite technology to track the location of a particular
iPhone when that phone is powered on. See A. A. C. v. Miller-Pomlee, 296
Or. App. 816, 820 n.2, 440 P.3d 106 (2019); see also Jones v. United States,
168 A.3d 703, 735 (D.C. App. 2017) (Thompson, J., dissenting) (‘‘case law
is replete with references to iPhone owners . . . locating . . . iPhones by
using the Find My iPhone app’’).
4
General Statutes § 53a-181d provides in relevant part: ‘‘(a) For the pur-
poses of this section, ‘course of conduct’ means two or more acts, including,
but not limited to, acts in which a person directly, indirectly or through a
third party, by any action, method, device or means, including, but not
limited to, electronic or social media, (1) follows, lies in wait for, monitors,
observes, surveils, threatens, harasses, communicates with or sends
unwanted gifts to, a person, or (2) interferes with a person’s property, and
‘emotional distress’ means significant mental or psychological suffering or
distress that may or may not require medical or other professional treatment
or counseling.
‘‘(b) A person is guilty of stalking in the second degree when:
‘‘(1) Such person knowingly engages in a course of conduct directed at
a specific person that would cause a reasonable person to (A) fear for such
person’s physical safety or the physical safety of a third person, or (B) suffer
emotional distress . . . .’’