L. L. v. M. B.

• Decision Date: 29 November 2022
• Docket Number: AC 45141
• Citation: 216 Conn.App. 731,286 A.3d 489
• Parties: L. L. v. M. B.
• Court: Connecticut Court of Appeals

216 Conn.App. 731

286 A.3d 489

L. L.

v.M. B.^*

AC 45141

Appellate Court of Connecticut.

Argued October 27, 2022

Officially Released November 29, 2022

Alexander J. Cuda, Westport, for the appellant (plaintiff).

Philip Russell, with whom, on the brief, was Catherine Keenan, for the appellee (defendant).

Alvord, Seeley and Sheldon, Js.

ALVORD, J.

The plaintiff, L. L., on behalf of her minor daughter, N. R.,¹ appeals from the judgment of the trial court dismissing her application for a domestic violence restraining order pursuant to General Statutes (Rev. to 2021) § 46b-15, as amended by Public Acts 2021, No. 21-78.² On appeal, the plaintiff claims that the trial court improperly dismissed her application on the basis that she was not eligible for relief because she did not fall within the definition of "[f]amily or household member" as set forth in General Statutes § 46b-38a (2).³ We reject the plaintiff's claim that the court improperly determined that she did not fall within the definition of family or household member but conclude that the form of the judgment is improper and, therefore, remand this case with direction to deny the plaintiff's application.

The following facts and procedural background are relevant to the plaintiff's claim. On October 1, 2021, the plaintiff filed an application for relief from abuse pursuant to § 46b-15, seeking a restraining order against the defendant, M. B. On that same day, the court, Kowalski, J. , issued an ex parte restraining order against the defendant and scheduled a hearing for October 14, 2021. On October 14, the parties appeared before the court, McLaughlin, J. , and jointly requested that the matter be continued on the grounds that a motion to seal the courtroom had been filed and the parties were awaiting documents that had been subpoenaed. The court continued the matter until October 28, 2021, and ordered, without objection by the defendant's counsel, that the restraining order remain in place until that date.

The hearing on the restraining order application was held over two dates, October 28 and November 12, 2021. The court heard the testimony of the plaintiff and the defendant, who were seniors attending the same high school. The court also heard the testimony of Kristina Colmenares, the assistant principal of the high school; the plaintiff's mother; and a mutual friend of the parties, who was called by the defendant. The parties also entered exhibits into evidence.

At the conclusion of the hearing, the court stated in relevant part: "The court found this case very troubling, but I note that the question before me is a limited one, which is under [§] 46b-15 of our statutes, whether or not, as we sit here together [the plaintiff] has been subjected to a continuous threat of present physical pain or injury, stalking or a pattern of threatening from [the defendant]. If [the defendant] satisfies the definition of family or household member. Family or household member, under our laws, the relevant part, is persons who have recently been in a dating relationship.

* * *

"Here, the evidence to the court establishes that, at best, these parties had a dating relationship in 2019, when they were sophomores. Prior to that point in time, was when they were in eighth grade.

"So, from the court and the evidence, the court finds that the parties do not satisfy the family or household member portion of the statute, which requires a recent dating relationship."

On November 15, 2021, the court issued a written order dismissing the plaintiff's application. The order stated: "Based on a preponderance of the credible evidence, the parties last dated for a short period in 2019. Thereafter, the parties interacted socially but were not dating. [Section] 46b-15 provides for the filing of an application for relief from abuse under specific circumstances. The statute, in relevant part, requires the parties to be in an existing dating relationship or to have recently been in a dating relationship. General Statutes § 46b-38a (2) (F). Here, the relationship between the parties does not satisfy the requirement for relief from abuse in accordance with ... § 46b-15 (a) because it ended almost two years prior to the filing of the application for relief from abuse. As such, this matter is dismissed." This appeal followed.

Before addressing the merits of the plaintiff's appeal, we turn to the defendant's contention that the appeal should be dismissed as moot. First, he represents that "the events immediately preceding the plaintiff's filing of the application ... occurred on a school bus and in school." Because the parties were seniors in high school for the 2021-2022 academic year, he contends that, "[b]y the time this appeal is heard, the parties will no longer be in the same school and no practical relief will be available." Second, he argues that "by the time this appeal is heard, the events leading up to the filing of the application ... will be remote in time and there is no evidence of a continuing threat of present physical pain or physical injury. Thus, [the] plaintiff cannot be said to have been subjected to a continuous threat of present physical pain or physical injury by the defendant, as required by § 46b-15 (a)." We disagree with the defendant.

"Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court's subject matter jurisdiction ...." (Internal quotation marks omitted.) Putman v. Kennedy , 279 Conn. 162, 168, 900 A.2d 1256 (2006). "[A]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. ... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. ... In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way." (Citation omitted; internal quotation marks omitted.) Wendy V. v. Santiago , 319 Conn. 540, 544–45, 125 A.3d 983 (2015).

Applying this standard, we determine that the present appeal is not moot because practical relief can be afforded to the plaintiff. The question presented by the plaintiff's appeal is whether the court properly determined that she was not eligible to obtain a domestic violence restraining order because she did not fall within the definition of "[f]amily or household member" as set forth in § 46b-38a (2). Were this court to determine that the trial court improperly determined that she did not satisfy that statutory requirement, relief in the form of a new hearing⁴ would be available to the plaintiff. That potential relief is sufficient to demonstrate that a successful appeal would benefit the plaintiff. The defendant's two proposed grounds for a determination of mootness do not implicate mootness but instead reflect arguments as to the merits of what would be decided at the potential new hearing, the outcome of which is undetermined. Because this court could grant practical relief to the plaintiff, we conclude that her appeal is not moot.

Our conclusion that the present appeal is not moot is supported by our Supreme Court's decision in Wendy V. v. Santiago , supra, 319 Conn. 540, 125 A.3d 983. In that case, the plaintiff filed an ex parte restraining order application, and the court denied the application as well as the plaintiff's request for a full hearing on the application. Id., at 542–43, 125 A.3d 983. The plaintiff appealed and requested as relief a hearing on her application. Id., at 543, 125 A.3d 983. While her appeal was pending, the trial court held a hearing on her original application, and a second application she had filed, and then denied the applications. Id., at 544, 125 A.3d 983. On appeal, our Supreme Court concluded that the fact that the trial court had held a hearing on the plaintiff's applications had rendered the plaintiff's appeals moot. Id.

Our Supreme Court then turned to the "capable of repetition, yet evading review" exception to the mootness doctrine. Id., at 545, 125 A.3d 983. The first requirement to qualify under the exception is that "the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded." (Internal quotation marks omitted.) Id. Our Supreme Court determined that the plaintiff's case failed to meet the first prong, explaining that "[t]he effect of the challenged action, namely, the denial of a hearing after an application under § 46b-15, is not, by its very nature, of limited duration. Rather, the effects of a denied hearing generally will persist indefinitely. Therefore, in cases in which a hearing is denied, the case would not become moot before appellate litigation that ensues can be concluded. Anomalously, this case became moot only because the trial court ultimately did provide the hearing that the plaintiff had requested." (Emphasis in original; footnote omitted.)

Id., at 546–47, 125 A.3d 983. In a footnote, the court rejected the plaintiff's contention that the effect of the denial of a hearing is of limited duration, explaining that, "[u]nlike the effect of an order granting a restraining order, however, which generally expires after one year, the effect of the denial of such an order continues indefinitely." Id., at 547 n.7, 125 A.3d 983.

Although the relevant analysis in Wendy V. pertained to the "capable of repetition, yet evading review" exception, and the case uniquely involved the denial of a hearing, the discussion contained therein further supports our conclusion that the present appeal is not moot. Our Supreme Court recognized that in cases in which a hearing is denied, the case would not become moot before appellate litigation could be concluded...