K. D. v. D. D.

• Citation: 214 Conn.App. 821,282 A.3d 528
• Decision Date: 06 September 2022
• Docket Number: AC 44842
• Parties: K. D. v. D. D.
• Court: Appellate Court of Connecticut

214 Conn.App. 821

282 A.3d 528

K. D.

v.D. D.^*

AC 44842

Appellate Court of Connecticut.

Argued April 6, 2022

Officially released September 6, 2022

Reuben S. Midler, Greenwich, for the appellant (defendant).

Bright, C. J., and Alexander and Lavine, Js.

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 relevant 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 defendant. 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 defendant. She testified that on the evening of June 24, 2021, she went to a restaurant with a group of others, including 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 testimony, 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 seconds 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 communicated with her electronically and she detailed that while she was still at the restaurant, she received a text message 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 people." 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 restaurant 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 application 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 comfortable 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 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. ... 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 determine, in a reasoned manner, the meaning of the statutory 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 threatening 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 subjected 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 physical 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 definition 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. at 113, 89 A.3d 896 ("[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 Dictionary (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 Dictionary (1993), as "an expression of an intention to inflict evil, injury, or damage on another usu[ally] as retribution or punishment for something done or left undone ...." Id., p. 2382. These definitions are not particularly useful in determining the proper standard to be...