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2022-03

L. D. v. G. T. ( 2022 )

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L. D. v. G. T.*
(AC 44386)
Prescott, Elgo and Eveleigh, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
granting the application for relief from abuse filed by the plaintiff and
issuing an order of protection against him pursuant to the applicable
statute ((Rev. to 2019) § 46b-15). The trial court granted the plaintiff’s
ex parte application for relief from abuse on behalf of herself and the
parties’ minor child, and issued a domestic violence order of protection
against the defendant that required him, inter alia, not to assault,
threaten, abuse, harass, follow, interfere with, or stalk the plaintiff. The
court thereafter conducted a hearing on whether to extend the ex parte
order, at which the plaintiff testified regarding her allegations against
the defendant. At that hearing, the court denied the request of the
defendant’s counsel to cross-examine the plaintiff. The court rendered
judgment granting the continuation of the order, from which the defen-
dant appealed to this court. Held that the trial court abused its discretion
in denying the defendant the opportunity to cross-examine the plaintiff
during the hearing on the plaintiff’s application for relief from abuse;
this court disagreed with the trial court’s reasoning that the posture of
the proceeding at issue as a hearing, as opposed to a trial, obviated
the need to provide an opportunity for cross-examination, as cross-
examination would have aided the court in assessing credibility, includ-
ing any bias, motive, interest and prejudice of the plaintiff.
Argued November 15, 2021—officially released March 1, 2022
Procedural History
Application for relief from abuse, brought to the
Superior Court in the judicial district of Litchfield,
where the court, Wu, J., granted the application and
issued an order of protection, and the defendant
appealed to this court. Reversed; judgment directed.
Robert A. Salerno, for the appellant (defendant).
Opinion
EVELEIGH, J. The defendant, G. T., appeals from the
judgment of the trial court granting the application of
the plaintiff, L. D.,1 for relief from abuse and issuing
a domestic violence order of protection pursuant to
General Statutes (Rev. to 2019) § 46b-15.2 On appeal,
the defendant argues, inter alia, that the court abused
its discretion by precluding him from cross-examining
the plaintiff during the hearing on the plaintiff’s applica-
tion for relief from abuse.3 We agree and, accordingly,
reverse the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff and the defendant are
the parents of a minor child, who, at the time of the
application, was about three months old. On September
14, 2020, the plaintiff filed an application for relief from
abuse on behalf of herself and the child against the
defendant pursuant to § 46b-15. In her application, the
plaintiff averred under oath to the following facts. From
June 11, 2020, to September 10, 2020, the parties and
the child were residing in the home of the defendant’s
parents. From September, 2019, to September, 2020,
the defendant threatened her life, intimidated her with
guns, blackmailed her, and tracked the location of her
phone without her knowledge or consent, often show-
ing up to her location uninvited.
The plaintiff further averred that from June 11, 2020,
to September 10, 2020, when the plaintiff, the defendant,
and their child were residing in the home of the defen-
dant’s parents, the defendant was forceful with their
child. Specifically, according to the plaintiff, the defen-
dant force-fed the child, yelled in the child’s face while
the child was sleeping, shook the child, and threw
objects onto the child. Additionally, the defendant alleg-
edly surveilled the plaintiff’s actions and prevented her
from turning off a baby monitor during therapy ses-
sions. The plaintiff also claimed that the defendant
threatened to find a way to take their minor child away
from her and told her that, if she tried to leave with
the child or protect herself from him, she would be
unsuccessful because he had connections to law
enforcement. The plaintiff further alleged that the
defendant had sexually assaulted her on numerous
occasions, and that there was a police investigation
pending as a result of an incident that took place on
September 4, 2020. On September 10, 2020, four days
prior to filing the application for relief from abuse, the
plaintiff and the child moved out of the residence of
the defendant’s parents and relocated to a new resi-
dence. The plaintiff’s application stated that the defen-
dant knew where the plaintiff and the child were resid-
ing.
On September 14, 2020, the court issued an ex parte
domestic violence order of protection against the defen-
dant, effective until September 21, 2020. The court set
a hearing date of September 21, 2020, to determine
whether to extend the order. At the time of the hearing,
the Department of Children and Families (department)
was investigating the defendant on the basis of allega-
tions of physical neglect of the parties’ minor child. In
addition, there was an ongoing custody action with
respect to the child.
Both the defendant and the self-represented plaintiff
appeared at the hearing on the plaintiff’s application
for relief from abuse. During the hearing, the plaintiff’s
testimony largely mirrored the statements she set forth
in her application. After the completion of the plaintiff’s
testimony, counsel for the defendant sought to cross-
examine the plaintiff. The court, however, stated that
it was not going to permit the defendant to cross-exam-
ine the plaintiff. The following exchange occurred
between the court and the defendant’s counsel:
‘‘The Court: . . . I’m assuming you’re going to have
your client testify . . . .
‘‘[The Defendant’s Counsel]: . . . I was going to do
cross-examination first. . . . I’m assuming that I’m per-
mitted to cross-examine the plaintiff.
‘‘The Court: No. I’m not going to allow cross-examina-
tion. This is [an order of protection] hearing. The court
hears the statement of the [plaintiff] and then hears the
response from the [defendant].
‘‘[The Defendant’s Counsel]: My understanding, Your
Honor, [is] that through the testimony that I can elicit
from the opposing side, that I’m going to be able to ask
her questions with regard to these allegations. These
are allegations that involve sexual assault in the second
degree, which she has admitted to bringing this to the
police department at this point. I think that it is best
to have testimony that is scrutinized, would be appro-
priate.
‘‘The Court: Again, the court feels comfortable taking
testimony from your client. If the court feels that it
needs any further information from the [plaintiff], I’ll
ask the question.
‘‘[The Defendant’s Counsel]: If I may have a moment,
please, Your Honor.
‘‘The Court: Yes, you may.
‘‘[The Defendant’s Counsel]: With respect, Your
Honor, at this point in time, my client is not going
to elect to testify as a result of his fifth amendment
privileges. We are going to seek to enter into this [order
of protection] without prejudice to be able to revisit it
at a later point in time. Should there be some sort of
application or motion for modification, I’m hopeful, at
that point, I’ll be able to admit exhibits through the
opposing applicant, because I have a voluminous
amount of information that I would like to present, but
without being able to cross-examine at this point, I’m
hamstrung, Your Honor, with respect to Your Honor.
‘‘The Court: Okay. All right. Well, very good. So the
court is going to enter a protective order. Again, any
protective order the [defendant] has an ability to file a
motion to ask the court to reconsider it so I don’t believe
that we’re actually doing anything different from the
standard but, under this protective order the court is
ordering today, the [defendant] is to surrender or trans-
fer all firearms and ammunition that he has or has
access to. He is not to assault, threaten, abuse, harass,
follow, interfere with or stalk the protected party. He
is to stay away from the home of the protected person,
wherever the protected person shall reside. He is not
to contact the protected person in any manner, whether
it be in writing, electronically, telephonically, social
media. He’s not to contact the protected person’s home,
workplace . . . or have others contact the protected
party in any way that would likely cause annoyance or
alarm to the protected person. This protective order
does protect the minor child . . . . And the period of
this protective order is going to be six months. . . .’’
In accordance with its oral ruling, the court issued
a written domestic violence order of protection against
the defendant, effective for six months, to expire on
March 21, 2021.4 On October 7, 2020, the defendant filed
a motion for reconsideration in which he requested the
court to reconsider its order of protection against him
or, in the alternative, to modify the order of protection
to allow contact with the minor child. On October 22,
2021, the defendant filed a motion for modification
requesting that the court permit the parties to communi-
cate for the sole purpose of arranging parenting time
for the defendant, on the basis of the department’s
request to observe the defendant and the minor child
together for purposes of resolving the open department
investigation.
A hearing on the defendant’s motions was held on
November 6, 2020. At the commencement of the hear-
ing, the defendant’s counsel stated that there were two
motions before the court—the motion for reconsidera-
tion and the motion for modification. With regard to
the motion for reconsideration, the following colloquy
occurred between the court and the defendant’s coun-
sel:
‘‘The Court: Okay. And counsel, it’s your motion.
‘‘[The Defendant’s Counsel]: Why, I believe two
motions [are] before the court today. I have the motion
for reconsideration. And then we have the motion for
modification of the [order of protection] here.
‘‘The Court: Okay. I’m hearing the motion for modifi-
cation.
‘‘[The Defendant’s Counsel]: All right. Your Honor,
with respect, I do not know if we could address the
motion for reconsideration first, as I believe that it,
obviously, impacts any motions that I make with regard
to the motion for modification, because the ability to
cross-examine, I think, would be of great import to the
court. But at the same time, if the court decides that
that is not a motion that we’re going to hear, then
that is, obviously, the court’s prerogative and position
to take.
‘‘The Court: And . . . as you have correctly stated,
it is the court’s prerogative in a [order of protection]
application—this is not a trial—this is a [order of protec-
tion] application, and the court is not inclined to allow
cross-examination. So the—
‘‘[The Defendant’s Counsel]: Understood . . . .
‘‘The Court: —the motion for reconsideration is
denied.’’
The court then heard testimony on the motion for
modification. Contrary to the plaintiff’s assertions, the
defendant testified that he had never screamed at or
shook the minor child. The defendant further testified
that the domestic violence order of protection, preclud-
ing him from seeing his child, would affect his relation-
ship with the child. The defendant testified that he
would be willing to be supervised during visits with the
child should he be permitted to see his child. Addition-
ally, the defendant testified that the department had
found that the allegations of physical neglect of the
minor child against him were unsubstantiated and, as
a result, closed its investigation. Finally, the defendant’s
counsel informed the court that the custody action con-
cerning the minor child was ongoing.
The plaintiff also testified, in opposition to the motion
for modification, stating that, without the domestic vio-
lence order of protection in place, there was nothing
ensuring her or the minor child’s safety. The plaintiff
testified that she believed that a modification of the
domestic violence order of protection would be prema-
ture.
The court denied the defendant’s motion for modifi-
cation, stating that no testimony was provided concern-
ing what constituted a significant change in circum-
stances, nor had enough time passed since the court’s
order for it to find that there had been a significant
change in circumstances to warrant a modification. This
appeal followed.
On appeal, the defendant claims, inter alia, that the
court abused its discretion by not affording him any
opportunity to cross-examine the plaintiff during the
hearing on the plaintiff’s application for relief from
abuse. We agree.
We begin by setting forth the standard of review and
the law that governs our analysis of the defendant’s
claim on appeal. ‘‘Our standard of review of a claim
that the court improperly limited the cross-examination
of a witness is one of abuse of discretion. . . . [I]n . . .
matters pertaining to control over cross-examination,
a considerable latitude of discretion is allowed. . . .
The determination of whether a matter is relevant or
collateral, and the scope and extent of cross-examina-
tion of a witness, generally rests within the sound dis-
cretion of the trial court.’’ (Citation omitted; internal
quotation marks omitted.) Dubreuil v. Witt,

65 Conn. App. 35

, 41,

781 A.2d 503

 (2001), aff’d,

271 Conn. 782

860 A.2d 698

 (2004).
‘‘Cross-examination is an indispensable means of elic-
iting facts that may raise questions about the credibility
of witnesses and, as a substantial legal right, it may not
be abrogated or abridged at the discretion of the court
to the prejudice of the party conducting that cross-
examination.’’ Hayes v. Manchester Memorial Hospi-
tal,

38 Conn. App. 471

, 474,

661 A.2d 123

, cert. denied,

235 Conn. 922

666 A.2d 1185

 (1995). ‘‘When a party has
been deprived of a fair and full cross-examination of a
witness upon the subjects of his examination in chief
. . . [the] denial of this right is . . . prejudicial and
requires reversal by this court.’’ (Internal quotation
marks omitted.) Dubreuil v. Witt,

supra,

65 Conn. App. 45

.
‘‘In determining whether a defendant’s right of cross-
examination has been unduly restricted, we consider
the nature of the excluded inquiry, whether the field
of inquiry was adequately covered by other questions
that were allowed, and the overall quality of the cross-
examination viewed in relation to the issues actually
litigated at trial. . . . Although it is axiomatic that the
scope of cross-examination generally rests within the
discretion of the trial court, [t]he denial of all meaning-
ful cross-examination into a legitimate inquiry consti-
tutes an abuse of discretion.’’ (Internal quotation marks
omitted.) Rousseau v. Perricone,

148 Conn. App. 837

,
844,

88 A.3d 559

 (2014). ‘‘Every reasonable presumption
should be made in favor of the correctness of the court’s
ruling in determining whether there has been an abuse
of discretion.’’ (Internal quotation marks omitted.) State
v. Bova,

240 Conn. 210

, 219,

690 A.2d 1370

 (1997).
We have little difficulty concluding that the court
abused its discretion in prohibiting the defendant from
cross-examining the plaintiff during the hearing on the
plaintiff’s application for relief from abuse. As pre-
viously described, during the hearing, the plaintiff testi-
fied as to the defendant’s allegedly abusive conduct
toward her and their child. When the plaintiff’s testi-
mony concluded, counsel for the defendant sought to
cross-examine the plaintiff. The court, however, stated:
‘‘No. I’m not going to allow cross-examination. This is
a [order of protection] hearing. The court hears the
statement of the [plaintiff] and then hears the response
from the [defendant].’’ Such a complete denial of the
right to cross-examination is clearly an abuse of discre-
tion.
In explaining its decision to preclude the defendant
from cross-examining the plaintiff, it appears that the
trial court distinguished the hearing on the plaintiff’s
application from a trial. We disagree, however, with the
trial court’s reasoning that the posture as a hearing
affecting significant interests, as opposed to a trial
doing such, obviates the need to provide an opportunity
for cross-examination. The United States Supreme
Court has held that, ‘‘[i]n almost every setting where
important decisions turn on questions of fact, due pro-
cess requires an opportunity to confront and cross-
examine adverse witnesses.’’ Goldberg v. Kelly,

397 U.S. 254

, 269,

90 S. Ct. 1011

25 L. Ed. 2d 287

 (1970). This
court has also explained that ‘‘[a] fundamental premise
of due process is that a court cannot adjudicate any
matter unless the parties have been given a reasonable
opportunity to be heard on the issues involved . . . .
Generally, when the exercise of the court’s discretion
depends on issues of fact which are disputed, due pro-
cess requires that a trial-like hearing be held, in which
an opportunity is provided to present evidence and to
cross-examine adverse witnesses.’’ (Citation omitted;
internal quotation marks omitted.) Szot v. Szot,

41 Conn. App. 238

, 241,

674 A.2d 1384

 (1996).
In the present case, in which the plaintiff had already
testified, cross-examination would have aided the court
in assessing credibility, including any ‘‘bias, motive,
interest and prejudice’’ of the plaintiff; State v. Milum,

197 Conn. 602

, 609,

500 A.2d 555

 (1985); would have
provided defendant’s counsel with the opportunity to
admit exhibits through the plaintiff, and could have
affected its decision to issue the order of protection
against the defendant.
In denying the defendant the opportunity to cross-
examine the plaintiff during the hearing, the court
denied the defendant ‘‘of all meaningful cross-examina-
tion into a legitimate inquiry’’; (internal quotation marks
omitted) Rousseau v. Perricone, supra,

148 Conn. App. 844

; and, thus, clearly abused its discretion.5
The judgment is reversed and the case is remanded
with direction to vacate the domestic violence order of
protection.
In this opinion the other judges concurred.
* In accordance with federal law;

18 U.S.C. § 2265

 (d) (3) (2018); we
decline to identify any party protected or sought to be protected under a
protective order or a restraining order that was issued or applied for, or
others through whom that party’s identity may be ascertained.
1
The plaintiff represented herself before the trial court and did not partici-
pate in the present appeal. We, therefore, decide the appeal on the basis of
the defendant’s brief, the record, and the defendant’s oral argument before
this court.
2
Hereinafter, unless otherwise indicated, all references to § 46b-15 in this
opinion are to the 2019 revision of the statute.
General Statutes (Rev. to 2019) § 46b-15 (a) provides in relevant part:
‘‘Any family or household member . . . who has been subjected to a contin-
uous threat of present physical pain or physical injury, stalking or a pattern
of threatening, including, but not limited to, a pattern of threatening . . .
by another family or household member may make an application to the
Superior Court for relief under this section. . . .’’
3
On appeal, the defendant also claims that the court improperly denied
his motion for reconsideration and violated his first, second, fourth, and
fourteenth amendment rights under the United States constitution and his
rights under article first, §§ 3, 7, 9, 10, and 15, of the Connecticut constitution
by improperly depriving him of his right to cross-examine the plaintiff during
the hearing on the plaintiff’s application for relief from abuse and during
the hearing on the defendant’s motions for reconsideration and for modifica-
tion. We need not address these bases for reversal because we reverse on
other grounds.
4
Despite the expiration of the domestic violence order of protection on
March 21, 2021, the defendant’s appeal is not moot. See C. A. v. G. L.,

201 Conn. App. 734

, 736 n.4,

243 A.3d 807

 (2020) (applying to order of civil
protection under General Statutes § 46b-16a principle that ‘‘expiration of a
six month domestic violence restraining order issued pursuant to . . .
§ 46b-15 does not render an appeal from that order moot due to adverse
collateral consequences’’ (internal quotation marks omitted)).
5
Our conclusion is also supported by an interpretation of the statute,
§ 46b-15. Although § 46b-15 does not explicitly provide a right to cross-
examine witnesses during a hearing on an application for relief from abuse,
General Statutes (Rev. to 2019) § 46b-15c (b) implies that one does in fact
exist by providing that ‘‘[n]othing in this section shall be construed to limit
any party’s right to cross-examine a witness whose testimony is taken in a
room other than the courtroom pursuant to an order under this section.’’
(Emphasis added.) Construing title 46b of the General Statutes as a whole;
see Cunningham v. Planning & Zoning Commission,

90 Conn. App. 273

,
285,

876 A.2d 1257

 (‘‘[a] court must interpret a statute as written . . . and
it is to be considered as a whole, with a view toward reconciling its separate
parts in order to render a reasonable overall interpretation’’ (internal quota-
tion marks omitted)), cert. denied,

276 Conn. 915

888 A.2d 83

 (2005); by
explicitly preserving a party’s right to cross-examine witnesses outside of
the courtroom, § 46b-15c implies that a party has a right to cross-examine
witnesses within the courtroom during a hearing on a domestic violence
order of protection pursuant to § 46b-15.
A review of our case law also supports this conclusion. In cases involving
§ 46b-15 order of protection hearings, cross-examination took place. See,
e.g., D. S. v. R. S.,

199 Conn. App. 11