Sabrina C. v. Fortin , 176 Conn. App. 730 ( 2017 )

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SABRINA C.* v. LUCAS FORTIN
(AC 39227)
Alvord, Keller and Lavery, Js.
Syllabus
The plaintiff filed an application for an order of civil protection against the
defendant, which alleged, inter alia, that the defendant had sexually
assaulted her in 2015. The trial court granted the application for a civil
protection order for one year. Before the order expired, the defendant
filed a motion to vacate or modify the order on the basis of certain
comments that the plaintiff allegedly had made on social media. At a
hearing on that motion, the defendant’s counsel represented that no
criminal charges had arisen as a result of the alleged assault and that
the order should be vacated. The court denied the motion as untimely
and on its merits. The defendant filed several motions to reargue, claim-
ing, inter alia, that the initial motion to vacate was not untimely. In her
objection, the plaintiff requested attorney’s fees for defending against
the defendant’s multiple motions. The court denied the motions to rear-
gue and granted the plaintiff’s request for an award of attorney’s fees,
and the defendant appealed to this court. Thereafter, approximately one
month prior to the expiration of the original order of protection in 2016,
the plaintiff filed a motion in the trial court to extend the order for an
additional year. The court concluded that no evidentiary hearing was
required and that, on the basis of its interpretation of the statute govern-
ing orders of civil protection (§ 46b-16a [c]), the need for protection of
the applicant still existed. The court extended the order of protection
an additional year, and the defendant filed an amended appeal. Held:
1. The trial court did not abuse its discretion in denying the defendant’s
motion to vacate or modify the original protection order; although it
was clearly erroneous for that court to have concluded that the motion
to vacate was untimely where, as here, it was filed within four months
of the date judgment was rendered, that erroneous factual finding was
not significant, as the trial court relied on two independent grounds for
its denial, and after the court acknowledged its erroneous finding, it
found that the denial of the motion was nevertheless proper because
the defendant had failed to provide a good or compelling reason to
vacate or modify the civil protection order.
2. Contrary to the defendant’s claim, the trial court did not improperly
substitute the basis for its denial of his motion to vacate or modify the
civil protection order in its articulation; in its oral ruling following the
hearing on the motion to vacate, the court indicated that it was not
persuaded by the defendant’s proffered reason to vacate the order,
namely, that the defendant had not been charged with a crime following
the police investigation into the assault, and that ground did not contra-
dict and was not irreconcilable with the court’s articulation that it denied
the motion to vacate because the defendant had failed to establish a
good or compelling reason to vacate or modify the judgment.
3. The trial court improperly granted the plaintiff’s request for attorney’s fees
under the bad-faith exception to the American rule without providing
the required high degree of specificity in its factual findings to support
a determination that the defendant’s motions to vacate and to reargue
had been filed in bad faith and were without color; although the trial
court’s articulation revealed that the court was troubled by the defen-
dant’s numerous, repetitive, and insufficient filings, and the court found
some of the defendant’s claims to be unpersuasive and without merit,
it did not provide, with a high degree of specificity, factual findings to
support a determination that those claims were made in bad faith and
were entirely without color, and there was nothing in the record to
support the court’s finding that the defendant’s motivation for the filings
was to victimize the plaintiff.
4. The trial court improperly granted the plaintiff’s motion for a one year
extension of the civil protection order, as there was no evidence pre-
sented at the 2016 hearing that the need for protection still existed;
subsections (a) and (c) of § 46b-16a are clear and unambiguous and
provide that a victim of sexual assault, after having obtained a civil
protection order, can apply to have that order extended if, inter alia,
the need for protection still exists, the plaintiff was required to present
evidence that her need for protection against the defendant still existed,
which she failed to do, and the trial court’s basis for its determination
that the need for protection still existed—that the plaintiff had been a
victim of sexual assault and that the statute was designed to protect
such victims—was insufficient without testimony or other evidence to
support it.
Argued April 26—officially released September 26, 2017
Procedural History
Application for a civil protection order, brought to
the Superior Court in the judicial district of Windham,
where the court, A. Santos, J., granted the application;
thereafter, the court denied the defendant’s motion to
vacate the protection order; subsequently, the court
denied the defendant’s motion to reargue, awarded the
plaintiff attorney’s fees, and the defendant appealed to
this court; subsequently, the court, A. Santos, J.,
granted the plaintiff’s motion to extend the protection
order, and the defendant filed an amended appeal;
thereafter, the court, A. Santos, J., issued articulations
of its decisions. Reversed in part; judgment directed.
Mathew Olkin, for the appellant (defendant).
Lorraine Carcova, with whom was Anne Louise
Blanchard, for the appellee (plaintiff).
Opinion
ALVORD, J. The defendant, Lucas Fortin, in his
appeal and first amended appeal, appeals from the judg-
ment of the trial court denying his motion to vacate or
modify a civil protection order that had been granted
to the plaintiff, Sabrina C., and from the court’s award
of attorney’s fees to the plaintiff after the court denied
his second amended motion for reargument. In the
defendant’s second amended appeal, he appeals from
the ruling of the court granting the plaintiff’s motion
for a one year extension of the civil protection order.
The defendant claims that the court improperly (1)
denied his motion to vacate or modify the civil protec-
tion order on erroneous factual and legal grounds, (2)
changed the basis for its denial in a subsequently issued
articulation, (3) awarded the plaintiff attorney’s fees
under the bad-faith exception to the American rule with-
out setting forth an adequate factual basis, and (4)
granted the plaintiff’s motion for a one year extension
of the civil protection order without any evidence to
support a finding that her need for protection still
existed. We agree with the defendant’s third and fourth
claims, and, accordingly, we remand the matter to the
trial court with direction to vacate the award of attor-
ney’s fees and to vacate the order extending the civil
protection order to November 24, 2017.
The following facts, which either were found by the
trial court or are undisputed, and procedural history
are relevant to our analysis. On November 10, 2015,
the plaintiff filed an application for an order of civil
protection pursuant to General Statutes § 46b-16a,1
alleging that the defendant had sexually assaulted her
on November 8, 2015. The court issued an ex parte civil
protection order that prohibited the defendant’s contact
with the plaintiff. The ex parte order expired on Novem-
ber 24, 2015, the date of the scheduled hearing on the
plaintiff’s application.
At the hearing, the plaintiff testified as follows. She
and the defendant had been longtime friends. The eve-
ning of November 7, 2015, she had plans to ‘‘hang out’’
with the defendant and another friend. Because they
would be consuming alcohol, the plaintiff planned on
spending the night at the defendant’s house. The plain-
tiff ‘‘drank a little bit too much,’’ and went inside the
defendant’s house around midnight. The next thing she
remembered was waking up with her pants down and
the defendant digitally penetrating her. She punched
him in the face and ran out the door. The defendant
also testified at the hearing, and he claimed that the
plaintiff initiated sexual contact with him and that he
responded by digitally penetrating her. He acknowl-
edged that she then punched him in the face.
The court ‘‘credited the plaintiff’s testimony and not
the defendant’s’’ and granted the plaintiff’s application
for a civil protection order. The terms of the order
required the defendant to surrender all firearms; prohib-
ited him from assaulting, abusing or harassing the plain-
tiff; prohibited any contact with the plaintiff; and
required him to stay 100 yards away from the plaintiff.
The expiration date of the order was November 24,
2016.
On March 8, 2016, the defendant, as a self-represented
party, filed a ‘‘motion to vacate civil protective order,’’
claiming that the plaintiff commented on social media
that ‘‘she is not afraid’’ of him and that ‘‘she will take
matters into her own hands.’’ The defendant also
claimed that the plaintiff was ‘‘trying . . . to get me to
violate the order.’’ On April 19, the plaintiff filed an
objection to the defendant’s motion on the following
grounds: ‘‘The defendant’s motion to vacate the civil
protective order recites new facts for the court to con-
sider. In this case, judgment has entered. The appeal
period has expired. The period of time in which to
open and modify a judgment has expired. It would be
improper for the court to hear a motion to vacate.’’
The court held a hearing on April 26, 2016, to consider
the defendant’s motion to vacate and the plaintiff’s
objection. At the beginning of the hearing, the court
asked the defendant, now represented by counsel, the
following question: ‘‘Counselor, are you asking to vacate
it completely, or are you asking to vacate it or modify
it?’’ The defendant’s counsel responded: ‘‘Vacate or in
the alternative modify, Your Honor.’’ The plaintiff’s
counsel then requested the opportunity to be heard
preliminarily on her objection first, claiming ‘‘proce-
dural’’ and ‘‘jurisdiction[al]’’ grounds. The court allowed
the plaintiff to proceed, and the plaintiff argued that
the defendant filed his motion more than four months
after the judgment granting the application for a civil
protection order had been rendered. In response, the
defendant’s counsel indicated that the defendant’s
motion had been filed prior to his representation of the
defendant in this matter.
The court, after noting that the defendant’s motion
to vacate relied upon events that occurred subsequent
to the issuance of the protection order, addressed the
defendant’s counsel: ‘‘So you’re not really questioning
the reason why the—the restraining order was—was
granted, you’re saying after the fact this is why it should
be vacated. Do you stand by the statements of your
client in connection with the application?’’ The defen-
dant’s counsel responded: ‘‘I was not aware of the exact
basis of the motion until I was shown it today. . . .
The basis of our motion that I’m prepared to argue
today, Your Honor—my argument is that subsequent
information, after the entry of the order, has—has
drawn into question the propriety of the continuance
of the protection order, specifically that the police
investigated it fully and found that there was no proba-
ble cause to charge him with any crime. And given that
conclusion, we feel it’s necessary to revisit.’’ The court
responded: ‘‘You understand that you don’t have to com-
mit a crime to have a—a civil restraining order—or a
restraining order granted in a case.’’ The defendant’s
counsel replied: ‘‘Certainly I do, Your Honor. And what
I’m going to argue is that at the time the order was
issued they were still in the midst of investigating the
complaint and had not yet drawn a conclusion about
it. The court drew its own conclusion about the—the
need for the order. And I’m simply arguing that the
balance may have shifted, given the results of the police
investigation.’’ The court stated: ‘‘Counselor—coun-
selor, the testimony was that your client sexually
assaulted the applicant, and I believed her.’’
No other ground for vacating the protection order
was proffered by the defendant, and neither party testi-
fied at the April 26, 2016 hearing. Immediately after
the hearing, the court orally ruled: ‘‘After hearing the
argument, I’m going to deny the motion for two reasons.
One is that this motion to vacate is not made within
120 days from the adjudication of the—of the case on
its merits, and also the reasons to vacate do not test
the—the validity of the court’s order that was made
after hearing the case on the merits.’’
On May 3, 2016, the defendant filed a motion to rear-
gue ‘‘pursuant to Practice Book § 11-12,’’ claiming that
the court ‘‘overlooked’’ a ‘‘controlling principle of law.’’
The defendant argued that the 120 day limitation period
to file a motion to open a judgment was not applicable
to the present case. The defendant cited case law for
the proposition that the court had ‘‘inherent power to
modify its own injunctions.’’ On May 5, the plaintiff
filed an objection to the defendant’s motion to reargue,
claiming, inter alia, that Practice Book § 11-12 was not
applicable to decisions that are final judgments for pur-
poses of appeal. On May 6, the defendant filed an
amended motion to reargue with the following explana-
tion: ‘‘This motion is in all ways identical to the motion
to reargue filed May 2, 2016,2 except that this motion
asks for reargument pursuant to [Practice Book §] 11-
11 instead of 11-12.’’
On May 11, 2016, the defendant filed a ‘‘second
amended motion to reargue’’ for the purpose of amend-
ing his prior motions to apprise the court that it had
‘‘misapprehen[ded] . . . a crucial fact.’’ The defendant
claimed that the court erroneously held that the defen-
dant’s motion to vacate the protection order had not
been filed within 120 days of the court’s judgment when,
in actuality, the motion had been filed 105 days after
the judgment had been rendered. The defendant addi-
tionally claimed that the plaintiff was attempting to
‘‘extract revenge against [the] defendant’’ and that the
order’s ‘‘100-yard stay-away’’ restriction had burdened
the defendant with ‘‘significant collateral conse-
quences.’’
On May 17, 2016, the plaintiff filed an objection to
the defendant’s second amended motion to reargue. In
her objection, the plaintiff, citing case law, argued that
a party must demonstrate a ‘‘good and compelling rea-
son’’ in order to prevail on a motion to open a judgment.
She claimed that the defendant’s motion to vacate the
order ‘‘is devoid of facts that would provide a compel-
ling reason to open the judgment’’ and that the defen-
dant ‘‘merely recounts feelings and events which he
believes transpired since final judgment entered.’’ At
the end of her objection, the plaintiff requested that
the court deny the defendant’s motion to reargue and
that he ‘‘pay costs for the plaintiff’s attorney’s fees in
defending the four motions filed on this issue.’’3 She
did not cite any statutory or case law in support of her
claim for attorney’s fees.
On May 17, 2016, the court held a hearing on the
defendant’s second amended motion to reargue and
the plaintiff’s objection to that motion. The defendant’s
counsel began his argument with the statement that
the court has ‘‘broad discretion to open and modify a
judgment for a good and compelling reason.’’4 He then
proffered the following reasons for opening the judg-
ment in the present case: (1) the defendant is subject
to ongoing felony arrests for the unknowing, innocent
violation of the 100 yard ‘‘stay away’’ provision of the
order; (2) the 100 yard ‘‘stay away’’ provision provides
little or no additional protection to the plaintiff; (3) the
defendant’s life has been impacted because he is fearful
of going out in public and being caught in an unknowing
violation; and (4) the plaintiff has an agenda to ‘‘extract
revenge’’ against the defendant by attempting to trap
him into violating the 100 yard ‘‘stay away’’ provision.
The plaintiff’s counsel responded: (1) the defendant
failed to appeal from the granting of the November 24,
2015 civil protection order; (2) the defendant’s own
conduct resulted in the current restrictions on his life’s
activities; (3) there is no need to modify the civil protec-
tion order; (4) the defendant filed his own application
for a civil protection order against the plaintiff in March,
2016, which was denied by the court; (5) the defendant
has subjected the plaintiff to several court proceedings
on the same issue, which has ‘‘re-victimiz[ed] her again
and again’’; and (6) the court should award attorney’s
fees to the plaintiff’s counsel for ‘‘defending . . . these
numerous duplicative motions.’’ The plaintiff’s counsel
requested $4800 in attorney’s fees. The defendant’s
counsel responded that ‘‘we find nothing improper in
amending our pleadings as the circumstances require.’’
Neither party testified in court after the arguments
by counsel. The court then orally ruled: ‘‘The court
found a valid reason to grant the restraining order
before. Nothing that has been offered would compel
the court to vacate the restraining order, or to even
modify it as requested in the second request by the—
by the . . . defendant. So the court is not convinced
that there’s a good and compelling reason to vacate
any of the judgment that was entered in this matter, I
believe, back in November 24, 2015. So for those rea-
sons the court will—will deny the—the defendant’s sec-
ond amended motion to reargue this case, and his
argument to open and modify—or open and vacate—
or open and modify the judgment. So the court is deny-
ing that.’’
The court then proceeded to address the plaintiff’s
request for attorney’s fees. ‘‘And the court—because of
the numerous requests that the defendant . . . has
made, the court does feel that the plaintiff’s attorney
ought to be paid attorney’s fees for defending all these
various motions, and even in motions that are new for
today. So based upon the arguments made, the court
will grant that request and order attorney’s fees to the
plaintiff in the amount of $1500.’’ The defendant filed
his original appeal from the award of attorney’s fees
on May 20, 2016. The defendant subsequently filed his
first amended appeal, dated May 23, 2016, to include
the denial of the defendant’s motion to vacate the civil
protection order.
On May 26, 2016, the defendant filed a motion for
articulation requesting that the trial court articulate the
factual and legal basis for its oral rulings on April 26
and May 17, 2016. Granting the motion for articulation,
the court issued a written memorandum of decision on
June 30, 2016, addressing the defendant’s requests. In
its articulation, the court conceded that it erroneously
had found that the motion to vacate the civil protection
order had not been filed within 120 days of the original
adjudication. The court acknowledged that the defen-
dant’s motion had been filed 105 days after the judgment
had been rendered by the court. Nevertheless, the court
stated that the denial of the defendant’s motion had
been proper because he ‘‘failed to establish a good or
compelling reason to vacate or modify the November
24, 2015 judgment.’’
The court articulated that all of the proffered reasons
presented by the defendant at the May 17, 2016 hearing
on the motion for reargument had been ‘‘unpersuasive
and not . . . compelling reason[s] to vacate or modify
the judgment.’’ The court noted that the defendant’s
primary argument in support of his motion to vacate
the civil protection order had been that ‘‘the rape kit
came back negative and the police did not find probable
cause to charge the defendant with a crime.’’ The court
reiterated that it had found the plaintiff’s testimony
about the sexual assault to be credible. Moreover, the
court articulated that it had responded to the defen-
dant’s primary argument at the April 26, 2016 hearing
by stating that the plaintiff did not have to prove that
a crime had been committed beyond a reasonable doubt
in order to be granted a civil protection order.
With respect to the award of attorney’s fees, the court
provided the following basis for its order. ‘‘By filing the
motion to vacate, the motion to reargue, two amended
motions to reargue without any merit, the defendant
continues to victimize the victim. Additionally, the
defendant filed an application for a civil protection
order against the plaintiff, which the court heard and
denied on March 22, 2016. The defendant’s application
was without merit.
‘‘The arguments advanced by the defendant’s counsel
at the May 17, 2016 hearing were the same arguments
advanced at the April 26, 2016 hearing that were not
accepted by the court. They have been repeated in the
various memoranda and motions filed by the defen-
dant’s counsel. A motion to reargue ‘is not to be used
as an opportunity to have a second bite at the apple’
. . . . In awarding attorney’s fees to the plaintiff’s
counsel, this court found that the defendant acted in
bad faith by attempting to take more than just ‘two
bites of the apple.’
‘‘In the present case, it is not any one filing that was
made in bad faith or colorless. It is the cumulative
amount of repetitive and insufficient filings. Continu-
ously repeating arguments and making the plaintiff’s
counsel respond to often redundant filings is, in this
court’s view, bad faith conduct warranting the award
of attorney’s fees for such duplicative and colorless
filings.’’ (Citation omitted.)
On October 27, 2016, which was four months after
the issuance of the court’s articulation, the plaintiff filed
a motion to extend the civil order of protection for an
additional year. The expiration date of the order was
November 24, 2016, and the plaintiff was requesting
that it be extended to November 24, 2017. In her motion,
the plaintiff first recited the procedural background of
the matter. She then argued that she had ‘‘a continuing
need for the court’s protection’’ because ‘‘the defen-
dant’s use of the court process has continued to cause
the plaintiff extreme emotional and physical distress
and further victimization.’’ The plaintiff further stated
that she ‘‘remain[ed] a victim of sexual abuse and sexual
assault,’’ that there was ‘‘no other order . . . in place
to protect her from the defendant,’’ and that ‘‘the defen-
dant continue[d] to use the court process to victimize
her as he has filed repeated motions and an appeal.’’
On November 8, 2016, the defendant filed an objec-
tion to the plaintiff’s motion. In his objection, the defen-
dant claimed that the plaintiff had made ‘‘false
allegations’’ in her motion and that her grounds for an
extension were ‘‘legally insufficient’’ to find that she
‘‘reasonably needs continuing protection against the
defendant.’’ The defendant further stated that an exten-
sion of the civil protection order ‘‘would do nothing to
deter the conduct of which the plaintiff complains. The
defendant has every right to defend against this action,
and will continue to do so whether the order is extended
or not.’’ The defendant filed a request for an evidentiary
hearing, which was granted by the court.
On November 15, 2016, the court held a hearing on
the plaintiff’s motion to extend the civil protection order
and the defendant’s objection to that motion. Both par-
ties were duly sworn at the beginning of the hearing.
The court then asked the plaintiff’s counsel whether she
wished to call the plaintiff as a witness. The plaintiff’s
counsel responded that she did, but that she believed
that a strict statutory interpretation of § 46b-16a (a) and
(c)5 provided all the authority that the court needed to
grant the extension. According to her interpretation,
the court needed only to find that the plaintiff had filed
a motion to extend the order, that she had been a victim
of sexual abuse or sexual assault, and that no other
order for protection against the defendant existed. The
plaintiff, through counsel, argued to the court that there
was no requirement that she prove that a continuing
need for protection still existed.
The defendant’s counsel disagreed with the interpre-
tation of plaintiff’s counsel and argued that the burden
of demonstrating a need for protection to obtain an
extension is the same as the burden of demonstrating
the need for protection to obtain the initial protection
order. He argued that § 46b-16a (b) sets forth the criteria
for determining whether protection is required.6 At that
point, the court stated that it would take a recess to
review the statutory provisions and the parties’ sub-
missions.
When court reconvened, the court made the following
oral ruling: ‘‘The court, having reviewed the submis-
sions and having considered the pertinent subsection
of the statute, which is [§] 46b-16a, subsection (c), con-
cludes that, in accordance with that section that the
need for protection of this applicant still exists. And,
therefore, the court will extend the protection order for
an additional year.’’ The court’s judgment was rendered
without either party testifying or providing any evi-
dence at the hearing. The defendant timely filed his
second amended appeal to include the court’s ruling
extending the civil protection order to November 24,
2017.
By motion dated November 30, 2016, the defendant
requested the trial court to articulate the factual and
legal basis for its judgment rendered on November 15,
2016. By memorandum of decision issued on February
27, 2017, the court articulated its reasoning for granting
the plaintiff’s motion to extend the civil protection order
against the defendant for an additional year. The court,
after setting forth the procedural history of the case and
citing the language in the relevant statutory provisions,
repeated its November 24, 2015 determination that it
had ‘‘fully credit[ed]’’ the representations that the plain-
tiff had made in her affidavit attached to her application
for the initial civil protection order as well as her testi-
mony at the November 24, 2015 hearing on that applica-
tion. It then made the following articulation: ‘‘After the
court issued the civil protection order, the [defendant]
made numerous court filings, including his application
for a civil protection order against the [plaintiff], which
required her to make numerous court appearances and
to repeatedly see the [defendant]. This court stated in
its memorandum of decision dated June 28, 2016, that by
using the civil protection order process to file multiple
motions ‘without any merit, the [defendant] continues
to victimize the victim.’
‘‘Based on the task force’s7 discussions regarding the
legislative policy that § 46b-16a (c) was designed to
implement8 and on the court’s findings of fact in the
present case, the court concludes that the circum-
stances of this case, i.e., the [defendant] sexually
assaulted the [plaintiff] but was not criminally prose-
cuted, present the exact situation for which the legisla-
ture intended continuing protection and provided for
an extension of the civil protection order. Therefore,
the court finds that the need for protection still exists
pursuant to § 46b-16a (c) in this case. Thus, because it
is undisputed that the [plaintiff] filed a proper motion
for the extension of the civil protection order, a proper
officer served the [defendant] a copy of the motion, no
other protection order based on the same facts and
circumstances is in place, and, as the court has deter-
mined, the need for protection still exists . . . the
[plaintiff] has satisfied all the requirements under § 46b-
16a (c) for the court to extend the civil protection order
against the [defendant].’’ (Footnotes added.) The court
then granted the plaintiff’s motion for a one year exten-
sion of the original November 24, 2015 order to Novem-
ber 24, 2017.
I
The defendant’s first claim on appeal is that the court
improperly denied his motion to vacate or modify the
November 24, 2015 civil protection order on erroneous
factual and legal grounds. Specifically, the defendant
argues that the court, in its first ground for the denial
of his motion to vacate, made a clearly erroneous find-
ing that his motion had not been filed within 120 days
of the judgment granting the plaintiff’s application for
a civil protection order. The defendant further claims
that the court applied an incorrect legal standard when,
in its second ground for the denial of his motion, the
court stated that the defendant failed to challenge the
validity of the November 24, 2015 judgment. The defen-
dant argues that the court should have, but failed to
consider certain events that had transpired subsequent
to the rendering of that judgment.9 We are not per-
suaded.
We first note that the motion filed by the self-repre-
sented defendant on March 7, 2016, was titled ‘‘motion
to vacate civil protective order.’’ The civil protection
order had been granted by the court on November 24,
2015, which was more than twenty days prior to the
filing of the defendant’s motion. The defendant had not
appealed from the court’s judgment, and, therefore, the
defendant was requesting that the court open the judg-
ment and vacate or modify the order.10 Accordingly, we
set forth the standard of review and legal principles
that are applicable to a court’s decision on a motion to
open a judgment.11
‘‘The denial of a motion to open is an appealable final
judgment. . . . Although a motion to open can be filed
within four months of a judgment . . . the filing of
such a motion does not extend the appeal period for
challenging the merits of the underlying judgment
unless filed within the [twenty day period provided by
Practice Book § 63-1]. . . . When a motion to open is
filed more than twenty days after the judgment, the
appeal from the denial of that motion can test only
whether the trial court abused its discretion in failing
to open the judgment and not the propriety of the merits
of the underlying judgment. . . . This is so because
otherwise the same issues that could have been
resolved if timely raised would nevertheless be
resolved, which would, in effect, extend the time to
appeal. . . .
‘‘The principles that govern motions to open or set
aside a civil judgment are well established. Within four
months of the date of the original judgment, Practice
Book [§ 17-4] vests discretion in the trial court to deter-
mine whether there is a good and compelling reason
for its modification or vacation. . . .
‘‘Because opening a judgment is a matter of discre-
tion, the trial court [is] not required to open the judg-
ment to consider a claim not previously raised. The
exercise of equitable authority is vested in the discre-
tion of the trial court and is subject only to limited
review on appeal. . . . We do not undertake a plenary
review of the merits of a decision of the trial court to
grant or to deny a motion to open a judgment. The only
issue on appeal is whether the trial court has acted
unreasonably and in clear abuse of its discretion. . . .
In determining whether the trial court abused its discre-
tion, this court must make every reasonable presump-
tion in favor of its action.’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) JP Morgan
Chase Bank, N.A. v. Eldon, 144 Conn. App. 260, 272–73,
73 A.3d 757, cert. denied, 310 Conn. 935, 79 A.3d 889
(2013).
At the April 26, 2016 hearing on the defendant’s
motion to vacate the civil protection order,12 the defen-
dant’s counsel affirmed that the defendant was seeking
either the vacating of the order or a modification of the
order. Instead of relying on the grounds set forth by
the self-represented defendant in his motion, however,
the defendant’s counsel stated that he was relying on
a different ground in support of the motion: the fact that
the police investigation into the plaintiff’s underlying
complaint of sexual assault found no probable cause
to charge the defendant with a crime. The defendant’s
counsel argued: ‘‘[G]iven that conclusion, we feel it’s
necessary to revisit.’’ He conceded, when questioned
by the court, that a civil protection order can be granted
without a crime being prosecuted.
When the arguments by the parties’ counsel had con-
cluded, the court orally ruled as follows: ‘‘I’m going to
deny the motion for two reasons. One is that this motion
to vacate is not made within 120 days from the adjudica-
tion of the—of the case on its merits, and also the
reasons to vacate do not test the—the validity of the
court’s order that was made after hearing the case on
the merits.’’
As correctly pointed out by the defendant, the court’s
first ground is clearly erroneous. The judgment was
rendered November 24, 2015, and the motion to open
and vacate was filed March 8, 2016, which was within
the four month period. After the defendant brought this
error to the court’s attention in his second amended
motion to reargue filed on May 11, 2016, and in his
motion for articulation filed on May 26, 2016, the court
acknowledged in its June 30, 2016 memorandum of
decision that it had erroneously found the filing of the
motion to be untimely.13 Nevertheless, the court articu-
lated that the denial of the defendant’s motion had been
proper because the defendant failed to provide a good
or compelling reason to vacate or modify the civil pro-
tection order.
We conclude that the court’s erroneous factual find-
ing in its oral ruling made on April 26, 2016, is not
significant. The court relied on two independent
grounds for its denial. Further, given its June 30, 2016
articulation, it acknowledged its mistake and stated
that the result reached had been proper because the
defendant failed to provide a good or compelling reason
to open the judgment. The defendant claims that this
reason is different from the reason provided in its oral
ruling. We disagree, for the reasons discussed in part
II of this opinion. Moreover, it is important to note that
the defendant relied only on the decision of the police
not to charge him with a crime as the basis for his
request to vacate or modify the order. As conceded by
counsel at the April 26, 2016 hearing, the subsequent
determination by the police that there was no probable
cause to charge the defendant with a crime does not
affect the validity of the November 24, 2015 order. The
court expressly stated that it credited the plaintiff’s
testimony that she had been sexually assaulted by the
defendant, and the court concluded that there was no
reason to open that judgment. For these reasons, we
determine that the trial court did not abuse its discretion
in denying the defendant’s motion to open the judgment
and vacate or modify the November 24, 2015 civil pro-
tection order.
II
The defendant’s next claim is that the court improp-
erly changed the basis for its denial of the defendant’s
motion to open and vacate or modify the civil protection
order in its subsequently issued June 30, 2016 articula-
tion. Specifically, he argues that the court ‘‘substitute[d]
new reasoning for the second stated basis’’ of his April
26, 2016 oral ruling. In the court’s oral ruling, it stated
that the defendant’s proffered reasons to vacate the
judgment did not test the validity of the civil protection
order, issued after the November 24, 2015 hearing on
the merits. In its June 30, 2016 memorandum of deci-
sion, the court articulated: ‘‘[T]he court’s denial of the
motion to vacate was proper because the defendant
failed to establish a good or compelling reason to vacate
or modify the November 24, 2015 judgment.’’ The defen-
dant claims that the articulation ‘‘offers an entirely new
basis for the April 26 [2016] ruling, delivered after the
fact and in clear conflict with the one expressed and
evidently used at the time of [that ruling].’’ We are
not persuaded.
‘‘As a general rule, [a]n articulation is appropriate
where the trial court’s decision contains some ambigu-
ity or deficiency reasonably susceptible of clarification.
. . . An articulation may be necessary where the trial
court fails completely to state any basis for its decision
. . . or where the basis, although stated, is unclear.
. . . The purpose of an articulation is to dispel any
. . . ambiguity by clarifying the factual and legal basis
upon which the trial court rendered its decision, thereby
sharpening the issues on appeal. . . . An articulation
is not an opportunity for a trial court to substitute a
new decision nor to change the reasoning or basis of
a prior decision. . . . If, on appeal, this court cannot
reconcile an articulation with the original decision, a
remand for a new trial is the appropriate remedy. . . .
Such a remedy, however, is appropriate only when [t]he
crucial findings of fact in the memorandum of decision
are inconsistent and irreconcilable, and the articulation
obfuscates rather than clarifies the court’s reasoning.’’
(Citations omitted; internal quotation marks omitted.)
Lusa v. Grunberg, 101 Conn. App. 739, 743, 923 A.2d
795 (2007).
Upon review of the reasons set forth in the court’s
April 26, 2016 oral ruling and its June 30, 2016 articula-
tion, we conclude that they are not irreconcilable with
respect to the basis for denying the defendant’s motion
to open the November 24, 2015 judgment. First, the
only ground proffered by the defendant for vacating or
modifying the judgment was that the police investiga-
tion resulted in the decision not to charge the defendant
with a crime. The court rejected that ground during
the hearing, and the defendant conceded that a civil
protection order could properly be issued in the
absence of a crime being committed.
Second, the court had not been persuaded by the
defendant’s argument regarding the police investiga-
tion, and the defendant had proffered no other grounds
for opening the judgment. The court stated that the
defendant had not challenged the validity of the Novem-
ber 24, 2015 civil protection order, which was correct.
When asked for a further articulation of the basis for
its denial of the defendant’s motion, the court
responded that he had failed to provide a good or com-
pelling reason for opening the judgment. These reasons
for denial are not irreconcilable or contradictory.
Moreover, the court did not err in failing to mention
its articulated reason in its April 26, 2016 oral ruling.
The case law does not require that the court expressly
state that it found no good and compelling reason before
denying a motion to open a judgment. The court’s deci-
sion ‘‘will not be disturbed so long as the court could
reasonably conclude as it did.’’ (Internal quotation
marks omitted.) Cockayne v. Pilon, 114 Conn. App. 867,
869, 971 A.2d 732 (2009). We conclude, therefore, that
the trial court’s articulation did not improperly substi-
tute a different ground for its denial of the defendant’s
motion to open the judgment.
III
The defendant’s next claim is that the court improp-
erly awarded the plaintiff attorney’s fees after it denied
his second amended motion for reargument at the May
17, 2016 hearing. Specifically, he argues that the court
granted the plaintiff’s request for attorney’s fees under
the bad-faith exception to the American rule14 without
providing a high degree of specificity in its factual find-
ings to support a determination that the defendant’s
motions had been filed in bad faith and were entirely
without color. We agree with the defendant.
We first set forth the applicable standard of review
and legal principles that guide our analysis of the defen-
dant’s claim. ‘‘It is well established that we review the
trial court’s decision to award attorney’s fees for abuse
of discretion. . . . This standard applies to the amount
of fees awarded . . . and also to the trial court’s deter-
mination of the factual predicate justifying the award.
. . . Under the abuse of discretion standard of review,
[w]e will make every reasonable presumption in favor
of upholding the trial court’s ruling, and only upset it
for a manifest abuse of discretion. . . . [Thus, our]
review of such rulings is limited to the questions of
whether the trial court correctly applied the law and
reasonably could have reached the conclusion that it
did. . . .
‘‘As a substantive matter, [t]his state follows the gen-
eral rule that, except as provided by statute or in certain
defined exceptional circumstances, the prevailing liti-
gant is ordinarily not entitled to collect a reasonable
attorney’s fee from the loser. . . . That rule does not
apply, however, where the opposing party has acted in
bad faith. . . . It is generally accepted that the court
has the inherent authority to assess attorney’s fees
when the losing party has acted in bad faith, vexatiously,
wantonly or for oppressive reasons. . . .
‘‘[A] litigant seeking an award of attorney’s fees for
the bad faith conduct of the opposing party faces a high
hurdle. . . . To ensure . . . that fear of an award of
attorney’s fees against them will not deter persons with
colorable claims from pursuing those claims, we have
declined to uphold awards under the bad-faith excep-
tion absent both clear evidence that the challenged
actions are entirely without color and [are taken] for
reasons of harassment or delay or for other improper
purposes . . . . Thus Maris [v. McGrath, 269 Conn.
834, 850 A.2d 133 (2004)] makes clear that in order to
impose sanctions pursuant to its inherent authority, the
trial court must find both [1] that the litigant’s claims
were entirely without color and [2] that the litigant
acted in bad faith. . . .
‘‘Significantly, our appellate courts have declined to
uphold awards under the bad-faith exception absent
. . . a high degree of specificity in the factual findings
of [the] lower courts.’’ (Citations omitted; emphasis in
original; footnote omitted; internal quotation marks
omitted.) Rinfret v. Porter, 173 Conn. App. 498, 507–509,
164 A.3d 812 (2017). In the present case, we conclude
that the trial court failed to comply with the require-
ments in our case law that it must find clear evidence
that the defendant’s actions were entirely without color
and were taken in bad faith, and must separately set
forth those factual findings with a high degree of speci-
ficity. Id., 510.
At the time the court awarded the plaintiff $1500 in
attorney’s fees at the May 17, 2016 hearing, the only
explanation it provided for the award was ‘‘because of
the numerous requests’’ that the defendant had made
that had required the plaintiff’s counsel to ‘‘[defend] all
[of those] various motions.’’ The court’s stated reason
was clearly inadequate to support an award of attor-
ney’s fees under the bad-faith exception to the American
rule. The defendant requested an articulation of the
court’s basis for its ruling, and the court granted that
request and provided more detailed and specific find-
ings in its written memorandum of decision. Accord-
ingly, we look to the court’s June 30, 2016 articulation
to determine whether the award of attorney’s fees was
properly made.
A careful reading of the June 30, 2016 articulation
reveals that the trial court was troubled by the ‘‘numer-
ous filings made by the defendant.’’ The court first noted
that the reasons provided in support of the defendant’s
motion to open the judgment and to vacate or modify
the civil protection order were ‘‘unpersuasive’’ and
failed to set forth ‘‘a compelling reason.’’ The court then
stated that ‘‘[b]y filing the motion to vacate, the motion
to reargue, two amended motions to reargue without
any merit, the defendant continues to victimize the vic-
tim. Additionally, the defendant filed an application for
a civil protection order against the plaintiff, which the
court heard and denied on March 22, 2016. The defen-
dant’s application was without merit.’’ The court
expressly found that ‘‘it is not any one filing that was
made in bad faith or colorless. It is the cumulative
amount of repetitive and insufficient filings.’’15 The
court concluded: ‘‘Continuously repeating arguments
and making the plaintiff’s counsel respond to often
redundant filings is, in this court’s view, bad faith con-
duct warranting the award of attorney’s fees for such
duplicative and colorless filings.’’
The court does not provide separate specific factual
findings supporting a determination of bad faith and a
determination that the filings were without color. In
essence, it is stating that the defendant filed repetitious
and duplicative filings necessitating a response from
the plaintiff’s counsel. Although the court stated that
it had found the defendant’s claims to be ‘‘without
merit,’’ that finding does not conclusively establish that
those same claims, as presented in the defendant’s fil-
ings with the court, were entirely colorless. ‘‘[A] claim
is colorable, for purposes of the bad faith exception to
the American rule, if a reasonable person, given his or
her firsthand knowledge of the underlying matter, could
have concluded that the facts supporting the claim
might have been established.’’ (Internal quotation
marks omitted.) Keller v. Keller, 167 Conn. App. 138,
150, 142 A.3d 1197, cert. denied, 323 Conn. 922, 150
A.3d 1151 (2016). ‘‘The standard definition of bad faith
is the absence of good faith.’’ Kupersmith v. Kupers-
mith, 146 Conn. App. 79, 98 n.14, 78 A.3d 860 (2013).
‘‘[T]he court must assess whether there has been sub-
stantive bad faith as exhibited by, for example, a party’s
use of oppressive tactics or its wilful violations of court
orders; [t]he appropriate focus for the court . . . is the
conduct of the party in instigating or maintaining the
litigation.’’ (Internal quotation marks omitted.) Id.,
97–98.
In the present case, the self-represented defendant
filed his motion to vacate claiming that the plaintiff had
commented on social media that she was not afraid of
him and that she was going to take matters into her
own hands. He further claimed that she was trying to
have him violate the order in order to have him arrested.
At the hearing on the motion, the defendant’s counsel
advised the court that the police did not find probable
cause to arrest the defendant in the subsequent investi-
gation of the plaintiff’s complaint. Although the court
stated that it found the defendant’s claims unpersuasive
and without merit, the court did not provide, with a
high degree of specificity, factual findings to support a
determination that those claims were made in bad faith
and were entirely without color.
With respect to the defendant’s motion for reargu-
ment and the two amendments to that motion,16 the
defendant acknowledged in his first amendment that
he had cited the wrong Practice Book rule in his initial
motion. In his second amendment, the defendant
brought to the court’s attention the fact that the motion
to vacate had been timely filed within 120 days of the
court’s November 24, 2015 judgment. In the court’s June
30, 2016 articulation, it agreed that its finding had been
erroneous because the defendant’s motion had been
filed 105 days after the judgment. We fail to see how
the defendant’s second motion for reargument can be
characterized in any way as being filed in bad faith
or colorless when the defendant’s claim was found to
be correct.
It would appear that the court concluded that the
numerous filings were made for the purpose of ‘‘vic-
timiz[ing]’’ the plaintiff, but there is nothing in the
record to show that the defendant’s motivation in filing
his motions and his own application for a civil protec-
tion order against the plaintiff was for purposes of
harassment. The court provides no specific factual find-
ings to support such a determination.
For these reasons, we conclude that the court did
not find with adequate specificity that the defendant’s
claims were entirely without color and that he acted
in bad faith. Maris v. McGrath, supra, 269 Conn. 845.
Accordingly, the court’s award of $1500 in attorney’s
fees to the plaintiff must be vacated.17
IV
The defendant’s final claim is that the court improp-
erly granted the plaintiff’s motion for a one year exten-
sion of the civil protection order to November 24, 2017.
He argues that § 46b-16a (c) authorizes an extension
only if the need for protection still exists and that no
evidence was presented at the November 15, 2016 hear-
ing to support that finding. We agree with the defendant.
It is undisputed that, although the parties were duly
sworn at the commencement of the extension hearing
held on November 15, 2016, neither the plaintiff nor
the defendant testified at that hearing. Following the
argument by the plaintiff’s counsel that the court
needed only to find that a motion to extend the order
had been properly filed, that the plaintiff had been the
victim of sexual abuse or sexual assault, and that no
other protection against the defendant existed, the
court called a recess in order to review the relevant
statutory provisions; see footnote 5 of this opinion; and
the parties’ submissions. When the court reconvened
after the recess, it immediately made its ruling on the
plaintiff’s motion for extension. The court, without the
benefit of the submission of any evidence, concluded
that ‘‘the need for protection of [the plaintiff] still exists’’
and granted the plaintiff’s motion to extend the civil
protection order to November 24, 2017. No further
explanation was provided by the court at that time.
The defendant subsequently filed a motion for an
articulation of the factual and legal grounds for the
court’s ruling. The court granted the defendant’s motion
and issued a written memorandum of decision on Feb-
ruary 27, 2017. In that articulation, the court stated that
the parties had presented different interpretations of
§ 46b-16a (c). The court then undertook its own analysis
of the statutory provisions at issue, namely, subsections
(a) and (c) of § 46b-16a, and concluded that the statu-
tory requirements for an extension had been satisfied
for the following reasons. First, the court repeated cer-
tain determinations that it had made in prior rulings.
The court stated that it had fully credited the plaintiff’s
testimony about the November 8, 2015 sexual assault
and that the defendant, following the issuance of the
civil protection order, ‘‘made numerous court filings,
including his application for a civil protection order
. . . which required [the plaintiff] to make numerous
court appearances and to repeatedly see [the defen-
dant]. . . . [B]y using the civil protection order process
to file multiple motions without any merit, [the defen-
dant] continues to victimize the victim.’’ (Internal quota-
tion marks omitted.)
Next, the court stated that it had reached its conclu-
sion on the basis of the task force’s recommendations;
see footnote 8 of this opinion; as well as the court’s
factual findings in this case: ‘‘[T]he court concludes
that the circumstances of this case, i.e., [the defendant]
sexually assaulted [the plaintiff] but was not criminally
prosecuted, present the exact situation for which the
legislature intended continuing protection and provided
for an extension of the civil protection order. Therefore,
the court finds that the need for protection still exists
pursuant to § 46b-16a (c) in this case. Thus, because it
is undisputed that [the plaintiff] filed a proper motion
for the extension of the civil protection order, a proper
officer served the [defendant] a copy of the motion, no
other protection order based on the same facts and
circumstances is in place, and, as the court has deter-
mined, the need for protection still exists . . . [the
plaintiff] has satisfied all the requirements under § 46b-
16a (c) for the court to extend the civil protection order
against [the defendant].’’
From this review of the court’s articulation, it is
apparent that the court determined that the statute
authorized an extension solely on the basis of the evi-
dence that had been presented at the time of the issu-
ance of the November 24, 2015 civil protection order.
The court concluded that the fact that the plaintiff had
been a victim of sexual assault, that no other protection
order against the defendant had been issued in connec-
tion with that assault, and that she followed the proce-
dural requirements for the filing of the motion for an
extension, entitled her to an extension without pre-
senting any evidence that a need for protection still
existed because of current circumstances. We conclude
that the court improperly granted the extension without
holding an evidentiary hearing.
The issue raised in this appeal, namely, whether the
plaintiff was required to present evidence that her need
for protection against the defendant still existed before
the court could grant her motion for a one year exten-
sion of the civil protection order, is an issue of statutory
construction. ‘‘Issues of statutory construction raise
questions of law, over which we exercise plenary
review. . . . The process of statutory interpretation
involves the determination of the meaning of the statu-
tory language as applied to the facts of the case, includ-
ing the question of whether the language does so
apply. . . .
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . The test to deter-
mine ambiguity is whether the statute, when read in
context, is susceptible to more than one reasonable
interpretation.’’ (Citations omitted; internal quotation
marks omitted.) Commissioner of Transportation v.
ISIS Realty Associates Ltd. Partnership, 121 Conn.
App. 13, 18–19, 993 A.2d 491 (2010).
The statutory language at issue is found in subsec-
tions (a) and (c) of § 46b-16a. Section 46b-16a (c) pro-
vides that a court may extend a civil protection order
provided (1) the applicant files a proper motion, (2) a
copy of the motion was properly served on the respon-
dent, (3) no other protection order based on the same
facts and circumstances exists, and (4) ‘‘the need for
protection, consistent with subsection (a) of this sec-
tion, still exists.’’ (Emphasis added.) Section 46b-16a
(a) provides that a ‘‘victim of sexual abuse [or] sexual
assault’’ may apply to the Superior Court for the issu-
ance of a civil protection order if no other court order
of protection has been obtained in connection with that
sexual abuse or sexual assault and if the applicant does
not qualify for relief from abuse by a family or house-
hold member under § 46b-15. The statutory language is
clear and unambiguous. A victim of sexual abuse or
sexual assault, after having obtained a civil protection
order, can apply to have that order extended if, inter
alia, ‘‘the need for protection . . . still exists.’’
(Emphasis added.)
The trial court recognized that it was required to find
that the need for protection still existed in order to
grant the plaintiff’s motion for an extension of the order.
It made that finding, but the basis for its determination
was that the plaintiff had been a victim of sexual assault,
the defendant had not been criminally prosecuted for
that assault, and the legislature intended such victims
to be protected. Further, the court stated that the defen-
dant’s filing of repetitious motions and his own applica-
tion for a civil protection order against the plaintiff
meant that he ‘‘continues to victimize the victim.’’
The court’s basis for its finding that the plaintiff’s
need for protection against the defendant still existed
is insufficient without some testimony or other evi-
dence to support it. As previously discussed in part III
of this opinion, the defendant should not be penalized
for filing his motions and application for a civil protec-
tion order absent some evidence that he had acted
in bad faith, vexatiously, wantonly or for oppressive
reasons. He provided explanations for his numerous
filings, and even the filing of supposed meritless
requests does not automatically constitute bad faith
conduct. Moreover, there is no logical connection
between prohibiting contact with the plaintiff and the
defendant’s filing of pleadings in ongoing litigation
between the parties. Requiring the defendant to stay
100 yards away from the plaintiff should not be used
as a foil to prevent him from exercising his legal right
to defend against or commence actions that involve
this plaintiff.
We conclude that the court could not properly grant
a one year extension on the grounds that the plaintiff
had been a victim of sexual assault and that the statute
was designed to protect such victims. If that were the
case, civil protection orders could be continued ad infi-
nitum regardless of the current situation between the
parties. There is nothing in the relevant legislation to
suggest such an intent or result. In order to obtain an
extension, the plaintiff was required to present evidence
that her need for protection against the defendant still
existed, and she failed to do so. In the absence of any
evidence to meet that statutory requirement, the court
erred in extending the civil protection order to Novem-
ber 24, 2017.
The judgment is reversed only as to the award of
attorney’s fees to the plaintiff and the order extending
the civil protection order to November 24, 2017, and
the case is remanded with direction to vacate that award
and that order. The judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interest of the
applicant for a protection order, we decline to identify the applicant or
others through whom the applicant’s identity may be ascertained.
1
General Statutes § 46b-16a (a) provides: ‘‘Any person who has been the
victim of sexual abuse, sexual assault or stalking, as described in sections
53a-181c, 53a-181d and 53a-181e, may make an application to the Superior
Court for relief under this section, provided such person has not obtained
any other court order of protection arising out of such abuse, assault or
stalking and does not qualify to seek relief under section 46b-15.’’
Although General Statutes § 46b-16a has been subject to amendment since
the plaintiff’s application was filed in 2015; see Public Acts 2016, No. 16-
34, § 6; Public Acts 2016, No. 16-105, § 6; those amendments have no bearing
on the merits of this appeal. In the interest of simplicity, we refer to the
current revision of the statute.
2
The defendant’s initial motion to reargue was dated May 2, 2016, but it
was filed with the court on May 3, 2016.
3
On May 16, 2016, the defendant, through his counsel, filed a memorandum
of law in support of the ‘‘motion to open and modify’’ that had been filed
by the self-represented defendant on March 8, 2016. The March 8, 2016
‘‘motion to vacate’’ already had been adjudicated by the court on April 26,
2016. The memorandum of law was filed more than two months after the
filing of the motion and nearly one month after the court’s ruling. The
defendant’s counsel subsequently provided a reason for filing the memoran-
dum. The defendant, when self-represented, had failed to file the requisite
supporting memorandum of law pursuant to Practice Book § 11-10 when
he filed his motion to vacate the civil protection order. The defendant’s
counsel explained: ‘‘The memorandum of law presented no new facts or
arguments, and was filed only to ensure the viability of [the] defendant’s
motion to vacate pending its reargument.’’
4
We note that the defendant’s counsel did not articulate this standard
until the hearing on his second amended motion to reargue. Neither party
stated that the court needed to find a good and compelling reason to open
the judgment at the April 26, 2016 hearing on the defendant’s motion to
vacate or modify the civil protection order.
5
General Statutes § 46b-16a (c) provides: ‘‘No order of the court shall
exceed one year, except that an order may be extended by the court upon
proper motion of the applicant, provided a copy of the motion has been
served by a proper officer on the respondent, no other order of protection
based on the same facts and circumstances is in place and the need for
protection, consistent with subsection (a) of this section, still exists.’’
(Emphasis added.)
Subsection (a) of § 46b-16a; see footnote 1 of this opinion; provides that
a victim of sexual abuse or sexual assault may apply to the Superior Court
for a civil protection order if that person has not obtained any other court
order of protection arising out of the sexual abuse or sexual assault and if
that person does not qualify for relief under the statute that addresses
physical abuse, stalking or threatening by a family or household member.
6
The defendant referred to the following language in § 46b-16a (b) in
support of his argument: ‘‘If the court finds that there are reasonable grounds
to believe that the respondent has committed acts constituting grounds for
issuance of an order under this section and will continue to commit such
acts or acts designed to intimidate or retaliate against the applicant, the
court, in its discretion, may make such orders as it deems appropriate for
the protection of the applicant. . . .’’ (Emphasis added.)
7
The task force referred to is the legislative Task Force on the Expansion
of Civil Restraining Orders. See footnote 8 of this opinion.
8
In the court’s articulation, it noted that neither the parties nor the court
had found cases that interpreted the relevant statutory provisions. The
court then looked for guidance from the task force that the legislature had
established to make recommendations to the bill that subsequently became
§ 46b-16a. The court stated: ‘‘The task force . . . noted that under the cir-
cumstances where there is a sexual assault but no criminal prosecution of the
perpetrator, victims of sexual assault are in a continuing need of protection
because ‘[t]he accused perpetrators often intimidate and harass victims and
their families.’ ’’
9
We will address this second claim more thoroughly in part II of this
opinion.
10
Although the defendant filed a motion to vacate, the court asked the
defendant’s counsel for clarification as to what relief was being sought at
the hearing on the motion held on April 26, 2016. The defendant’s counsel
responded that the defendant was requesting that the court vacate, or, in
the alternative, to modify the civil protection order. The plaintiff did not
object to that characterization of the motion, and the court and the parties
proceeded on that basis.
11
The defendant repeatedly has confirmed that he is not challenging the
granting of the civil protection order by the court on November 24, 2015.
By seeking a modification of the order, he claims that the need for some
of its original terms no longer exists.
12
The court held a hearing on the defendant’s motion even though it is
not one of the enumerated motions in our rules of practice that provides
for oral argument as a matter of right. See Practice Book § 11-18.
13
In this case, the subject motion to vacate or modify had been filed within
four months of the date that the court granted the plaintiff’s application for
a civil protection order against the defendant. It therefore is not necessary
for this court to reach the issue of whether the motion would have been
untimely if it had been filed more than four months after the court’s judgment.
Nevertheless, we do not mean to suggest that a party is restricted to the
four month period when a court grants injunctive relief in a restraining
order. See Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn.
168, 214–16, 884 A.2d 981 (2005).
14
‘‘[T]he common law rule in Connecticut, also known as the American
Rule, is that attorney’s fees and ordinary expenses and burdens of litigation
are not allowed to the successful party absent a contractual or statutory
exception.’’ (Internal quotation marks omitted.) Berzins v. Berzins, 306
Conn. 651, 661, 51 A.3d 941 (2012).
The plaintiff does not claim that there is any statute that authorizes an
award of attorney’s fees under the circumstances of this case.
15
We have been provided with no authority by either the plaintiff or the
court that supports a finding that the filing of duplicative motions, none of
which were ‘‘colorless’’ or filed in protectionaith, constitutes protectionaith
conduct because of the cumulative amount of such filings.
16
‘‘[T]he purpose of a reargument is . . . to demonstrate to the court
that there is some decision or some principle of law which would have a
controlling effect, and which has been overlooked, or that there has been
a misapprehension of facts. . . . It also may be used to address . . . claims
of law that the [movant] claimed were not addressed by the court. . . . [A]
motion to reargue [however] is not to be used as an opportunity to have a
second bite of the apple . . . .’’ (Emphasis omitted; internal quotation marks
omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 94 n.28, 952 A.2d
1 (2008).
17
In her appellate brief, the plaintiff argues that the defendant waived his
right to challenge the award of attorney’s fees on appeal because he failed
to object at the May 17, 2016 hearing. In support of her argument, the
plaintiff cites Smith v. Snyder, 267 Conn. 456, 481, 839 A.2d 589 (2004);
Florian v. Lenge, 91 Conn. App. 268, 285–86, 880 A.2d 985 (2005); and Arcano
v. Board of Education, 81 Conn. App. 761, 771, 841 A.2d 742 (2004). These
cases are distinguishable from the present action. In Smith and Arcano,
attorney’s fees were authorized by statute and could be awarded at the
discretion of the court. In Florian, attorney’s fees were authorized by the
subject promissory note that permitted recovery of attorney’s fees provided
they were reasonable. None of those cases involved the bad-faith exception
to the American rule. As discussed in this opinion, certain requirements
must be met before a court can award attorney’s fees under the bad faith
exception, and the court’s factual findings were insufficient to support
that award.
Moreover, we are not convinced that the defendant failed to challenge
the plaintiff’s request for attorney’s fees. At the May 17, 2016 hearing, the
defendant’s counsel, although not expressly stating that he objected, did
respond that ‘‘we find nothing improper in amending our pleadings as the
circumstances require.’’ His statement reflects that he questioned the propri-
ety of imposing sanctions under these circumstances.