D. S. v. R. S.

199 Conn.App. 11

234 A.3d 1150

D. S.

v.R. S.^*

AC 43109

Appellate Court of Connecticut.

Argued March 12, 2020

Officially released July 14, 2020

Norman J. Voog, Ridgefield, for the appellant (defendant).

Bright, Devlin and Harper, Js.

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 pursuant to General Statutes § 46b-15.¹ On appeal, the defendant 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 plaintiff'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 behavior, 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 meetings, and by watching him from a distance, (2) by trespassing 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-represented plaintiff appeared, testified, and submitted evidence on the issue of the plaintiff's application for relief from abuse. During the hearing, the plaintiff's testimony, 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 defendant 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 schoolwork; and the defendant, despite the plaintiff's instructions 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. Specifically, 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 sometimes 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 exhibits, including a series of text messages from the defendant 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 damaging to my child."

At the conclusion of the evidence, the court bifurcated 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 continuation 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 statutory 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, communicates 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 conclusion 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 surveilled, 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 principles. "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. ... 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." (Citation omitted; internal quotation marks omitted.) Id., at 111–12, 89 A.3d 896.

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...