Tara S. v. Charles J.

178 Conn.App. 547

176 A.3d 602

TARA S.

v.CHARLES J.^*

AC 39284

Appellate Court of Connecticut.

Argued October 10, 2017

Officially released December 12, 2017

Bryan P. Fiengo, with whom, on the brief, was Eric W. Callahan, for the appellant (defendant).

Karen K. Clark, with whom, on the brief, was Timothy L. O'Keefe, for the appellee (plaintiff).

Lavine, Prescott and Bear, Js.

BEAR, J.

The defendant, Charles J., appeals from the trial court's judgment (1) denying his motion to dismiss the application for a prejudgment remedy filed by the plaintiff, Tara S., and the underlying action,¹ and (2) granting a prejudgment attachment of $150,000 in favor of the plaintiff. On appeal, the defendant claims that the court improperly denied his motion to dismiss because, as applied to him, General Statutes § 52–577d is unconstitutional in that the plaintiff did not repress memories of the sexual assault and, therefore, knew of her potential claim against him for more than thirty years. The defendant also argues that § 52–577d violates his right to a speedy trial, his protection against double jeopardy, and his right to confrontation provided by both the United States and Connecticut constitutions. Finally, the defendant argues that § 52–577d is unconstitutionally overbroad and improperly deprives him of a property interest. We affirm the judgment of the trial court.

The relevant facts are set forth in the court's memorandum of decision on the motion to dismiss and the application for a prejudgment remedy. "The plaintiff is a victim of sexual abuse at the hand of her father, the defendant ... who was the subject of a criminal prosecution, the appeal of which resulted in a case of first impression [in our Supreme Court] concerning the use of videotaped testimony of minor victims ....

"At the hearing on the prejudgment remedy application, the plaintiff ... testified that she had reviewed the [Supreme Court] decision and other documents relating to the prosecution shortly before she testified. Her testimony about the events surrounding the sexual assaults [was] nearly identical to the facts as recited by the court .... The plaintiff was four years old at the time of the assault and, although she claimed to have memory of the assaults, the court finds that the memory is largely based on a recent reading of the accounts of the events and extensive discussion with family members.

"The plaintiff, now [thirty-six] years of age, testified that she and her mother and brother moved away from Middletown when she was [five] years old. She stated that she thought she had received some counseling, but had not received regular medical checkups as a child. The plaintiff played sports and an instrument in high school, where she was on the honor roll. She was never suspended in school for any misconduct. The plaintiff received her bachelor's degree from the University of North Carolina at Asheville, where she was on the dean's list, and a master's degree from the University of Oregon. She married in 2010, had a child, and divorced in 2015.

"The plaintiff testified that she had never been diagnosed with depression by any medical professional. However, she stated that she diagnosed herself with depression and obtained antidepression medication from her primary care physician. She last took the antidepression medication in 2013....

"The plaintiff testified that the main effect that the sexual assaults had on her life was that she grew up only knowing her mother's side of the family, she felt guilty about her [the defendant's] prosecution and was embarrassed when people asked her where her father was. When asked why she decided to bring this lawsuit now, after the passage of so many years, the plaintiff testified she struggled everyday and also, learned that the case against [the defendant] had considerable notoriety."

General Statutes § 52–577 provides that "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." Section 52–577d, upon which the plaintiff relies to establish the timeliness of this litigation, provides that "[n]otwithstanding the provisions of section 52–577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority."² The defendant makes several arguments challenging the constitutionality of § 52–577d as applied to him. Specifically, the defendant argues that the plaintiff's claim does not satisfy the legislative purpose behind extending the limitations period for victims of childhood sexual abuse because the plaintiff allegedly did not repress any memories of the sexual assaults. The defendant further argues that this civil litigation is of a "quasi-criminal" nature and infringes upon certain constitutional protections typically afforded criminal defendants, namely, the right to a speedy trial, the protection against double jeopardy, and the right to confrontation under the United States and Connecticut constitutions. The defendant also claims that § 52–577d is unconstitutionally overbroad and infringes upon a property interest of the defendant. We disagree.

"In considering an application for a prejudgment remedy [t]he trial court's function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits.... Appellate review of the granting of a [prejudgment remedy] is extremely narrow and focused. In determining probable cause, the trial court is vested with wide discretion and our role in reviewing the trial court's action is limited to determining whether the court's conclusion was reasonable.... Accordingly, the trial court's determination in a [prejudgment remedy] proceeding should not be disturbed unless it is clearly erroneous.... Furthermore, we are entitled to presume that the trial court acted properly and considered all the evidence." (Internal quotation marks omitted.) Giordano v. Giordano , 39 Conn. App. 183, 206, 664 A.2d 1136 (1995). On appeal, the defendant does not, separately from or in addition to his constitutional claims, contest the court's finding of probable cause or its granting of or the amount of the prejudgment remedy.

"Determining the constitutionality of a statute presents a question of law over which our review is plenary.... It [also] is well established that a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt.... The court will indulge in every presumption in favor of the statute's constitutionality .... Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear." (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp. , 317 Conn. 357, 405, 119 A.3d 462 (2015).

We first address the defendant's claim that § 52–577d is unconstitutional as applied to him because the plaintiff allegedly did not repress memories of the sexual assaults perpetrated by the defendant.³ Relying on certain pieces of legislative history to support his claim, the defendant argues that the purpose behind extending the limitations period was to allow victims of childhood sexual abuse time to recall memories of the abuse that they had repressed. When § 52–577d is read in light of General Statutes § 1–2z,⁴ however, we are compelled to conclude that, whether the plaintiff did or did not repress memories of the sexual abuse is irrelevant, as § 52–577d does not mention or require repressed memories, nor does it bar plaintiffs who have not repressed memories of the abuse from relying on it. As our Supreme Court has recognized, the language of § 52–577d is clear and unambiguous in that it allows a victim of childhood sexual abuse to bring a claim for damages against the perpetrator of the abuse no later than thirty years from the date upon which the victim attains the age of majority. See Doe v. Norwich Roman Catholic Diocesan Corp. , 279 Conn. 207, 214, 901 A.2d 673 (2006) ("[t]he meaning of § 52–577d... is plain and unambiguous because it is susceptible of only one reasonable interpretation, namely, that a minor victim of sexual assault may bring a civil action no later than thirty years from the date that he or she attains the age of majority ....") Because the meaning of § 52–577d is plain and unambiguous, we do not consider the legislative history that the defendant relies on and conclude that its language permitted the plaintiff to bring an action against the defendant regardless of whether she had or had not repressed her memories of the sexual assaults.

We next address the defendant's constitutional challenges regarding the alleged "quasi-criminal" nature of this civil litigation. The defendant argues that application of § 52–577d violates his constitutional right to a speedy trial,⁵ his protection against double jeopardy,⁶ and his right to confrontation.⁷ Each constitutional provision at issue, however, is applicable only in criminal settings. See, e.g., U.S. Const., amend. VI ("[i]n all criminal proceedings ..."); Conn. Const., art. 1, § 8 (same); U.S. Const., amend. V ("[n]o person shall be ... subject for the same offence to be twice put in jeopardy of life or limb ..."); cf. In re Ceana R. , 177 Conn. App. 758, 772, 172 A.3d 870 (2017) (noting that constitutional protections of sixth amendment to United States constitution and article first, § 8, of state constitution do not extend to parents in neglect proceeding, which is civil proceeding).⁸

Finally, we address the defendant's arguments that § 52–577d is unconstitutionally overbroad and unconstitutionally infringes upon...