Kathrynne S. v. Swetz

191 Conn.App. 850

216 A.3d 858

KATHRYNNE S.

v.Stanley SWETZ^*

AC 41143

Appellate Court of Connecticut.

Argued May 20, 2019

Officially released August 20, 2019

Stanley Swetz, self-represented, the appellant (defendant).

Alvord, Bright and Bear, Js.

PER CURIAM.

The self-represented defendant, Stanley Swetz, appeals from the judgment of the trial court granting the application of the self-represented plaintiff, Kathrynne 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 improperly (1) determined that there was evidence of imminent physical harm or threat, (2) considered his invocation of his right against self-incrimination pursuant to the fifth amendment of the United States constitution as evidence (fifth amendment right), and (3) applied an incorrect standard of proof in granting the application.² We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On November 17, 2017, the plaintiff filed an application for relief from abuse against the defendant pursuant to § 46b-15. At the time of her application, the plaintiff resided with her life partner and his son, the defendant.³ In her application, the plaintiff averred under oath that the defendant screamed in her left ear, verbally attacked her so forcefully that she would be covered in his spit, followed her throughout the house, opened windows on cold days, used derogatory language directed at her, threatened to sabotage her car, and barged into her room to take photographs of her in her nightwear, and that the defendant had been arrested for assaulting her in 2015.

At the hearing on the plaintiff's application, on November 30, 2017, the plaintiff described the defendant's conduct as "constant intimidation and threatening and stalking ...." The plaintiff also testified that the defendant struck her on two occasions, once in 2010 and again in 2015. In support of her claims, the plaintiff offered into evidence, to which the defendant objected,⁴ a flash drive containing an audio recording of the defendant allegedly engaging in an eighteen minute "verbal rant" against the plaintiff. The plaintiff further testified that she had gone to the Manchester police with the recording. The court then asked the defendant if he objected to its hearing of the recording given to the police and advised the defendant of his fifth amendment right. After the court's advisement, the defendant invoked his fifth amendment right with respect to the contents of the recording.⁵ The court then stated that it inferred "that there is stuff on that tape he doesn't want this court to hear." The tape was not admitted into evidence.

The plaintiff also presented the testimony of Brooke Clemons, a social worker for Manchester Protective Services for the Elderly. Clemons testified that the plaintiff had provided a video from her phone about the emotional abuse she received and that the plaintiff had told her that the defendant stole food and repeatedly stood right behind her and yelled in her ear. Clemons further testified that because of the plaintiff's disclosure, she opened two protective service cases: one on the plaintiff and one on her life partner. She also testified that she met with the plaintiff's life partner and he "supported everything that [the plaintiff] was telling [her] that was happening in the home" and that "he would like to see his son leave."⁶ The defendant did not object to any of Clemons' testimony.

In response, the defendant argued at the hearing that the plaintiff had not made any accusations of imminent physical harm in her application for the restraining order or in her presentation to the court. He also argued that the plaintiff had presented "no concrete day, time" associated with her claims.

At the conclusion of the hearing, the court orally rendered its decision granting the plaintiff's application for a restraining order. The court stated: "I do believe [the plaintiff], that she feels that her safety is at risk with [the defendant] being present in the home. I do believe that she feels intimidated and bullied and that her physical safety is in jeopardy. So, I think it's entirely appropriate to grant the relief requested." The court issued a full no-contact order for one year. This appeal followed. Additional facts will be set forth as necessary.

As a preliminary matter, we note that although the restraining order expired on November 30, 2018, the defendant's appeal is not moot. In Putman v. Kennedy , 279 Conn. 162, 164–65, 900 A.2d 1256 (2006), our Supreme Court concluded that "the expiration of a domestic violence restraining order does not render an appeal from that order moot because it is reasonably possible that there will be significant collateral consequences for the person subject to the order." Accordingly, we proceed to the merits of the defendant's appeal.

I

On appeal the defendant first claims that the court erroneously determined that he had threatened and bullied the plaintiff and that he had caused her to fear for her personal safety. More specifically, he claims that "[t]he judge made her decision based on feelings and on no actual facts brought into evidence."

We first set forth the standard of review and applicable legal principles that guide our analysis. "[T]he standard of review in family matters is well settled. 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." (Footnote omitted; internal quotation marks omitted.) Princess Q. H. v. Robert H. , 150 Conn. App. 105, 111–12, 89 A.3d 896 (2014).

Section 46b-15 (a), which governs this case, authorizes the court to issue a restraining order upon a finding that a "household member ... has been subjected to a continuous threat of present physical pain or physical injury, stalking or a pattern of threatening ...." Because the court granted the plaintiff's application on the basis of its finding that there existed a continuous threat of present physical pain or injury, we proceed under that part of § 46b-15, and not under the stalking or pattern of threatening portion of the statute. With respect to the defendant's claim as considered by the court, "[t]he plain language of § 46b-15 clearly requires a continuous threat of present physical pain or physical injury before a court can grant a domestic violence restraining order.... [D]omestic violence restraining orders will not issue in the absence of the showing of a threat of violence, specifically a continuous threat of present physical pain or physical injury to the applicant." (Citation omitted; internal quotation marks omitted.) Jordan M. v. Darric M. , 168 Conn. App. 314, 319, 146 A.3d 1041, cert. denied, 324 Conn. 902, 151 A.3d 1287 (2016). As this court held in Putman , after remand from our Supreme Court, "one incident [of physical injury], combined with a finding that a respondent presently poses a continuous threat, is sufficient to satisfy § 46b-15." (Emphasis in original.) Rosemarie B.-F. v. Curtis P. , 133 Conn. App. 472, 477, 38 A.3d 138 (2012) ; see Putman v. Kennedy , 104 Conn. App. 26, 32–34, 932 A.2d 434 (2007), cert. denied, 285 Conn. 909, 940 A.2d 809 (2008).

In Putman , as in the present case, the defendant argued that the trial court abused its discretion because there was no factual basis to support its finding that the defendant presented a continuous threat of physical pain or injury to support the issuance of a restraining order under § 46b-15. Putman v. Kennedy , supra, 104 Conn. App. at 33–34, 932 A.2d 434. Specifically, the defendant in Putman argued that there was only an isolated altercation with his son and that there was no history of violence. Id., at 33–34, 932 A.2d 434. This court held that "neither a pattern of abuse nor the son's subjective fear of the defendant is a requirement for the finding of a continuous threat.... It would defy the prophylactic purpose of the statute to impose an absolute bar on relief until the person for whom protection was sought has suffered multiple physical abuses." (Citations omitted.) Id., at 34, 932 A.2d 434. The trial court had found, and this court affirmed, that the altercation between the father and the son, along with the father's refusal to accept responsibility, was sufficient to find that the son was subject to a continuous threat of present physical pain or injury, despite the fact that the son did not state that he was afraid of his father. Id., at 34–35, 932 A.2d 434. To have held otherwise would have restricted "the necessarily broad discretion trial courts must retain in dealing with such sensitive and fact specific matters." Id., at 35, 932 A.2d 434.

In the present case, the court found that a restraining order was warranted on the basis of the plaintiff's affidavit, her testimony, and the testimony of the social worker. The court believed the plaintiff's testimony that she was intimidated and bullied, and that her physical safety was in jeopardy with the defendant present in the home. "In 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...