Kimberly C. v. Anthony C. , 179 Conn. App. 856 ( 2018 )

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KIMBERLY C. v. ANTHONY C.*
(AC 38991)
Alvord, Keller and Pellegrino, Js.
Syllabus
The plaintiff appealed to this court from the judgment of the trial court
dissolving her marriage to the defendant and making certain custody
orders. The plaintiff claimed that the trial court improperly awarded
the parties joint legal custody of their minor child and improperly denied
her motions for sexual behavior and substance abuse evaluations of
the defendant. The plaintiff alleged that the defendant had physically,
verbally and sexually abused her during the course of their marriage,
and she had previously obtained a one year restraining order against
the defendant per written agreement of the parties, pursuant to which
the defendant did not admit to the allegations of the alleged abuse.
Upon expiration of the first restraining order, the plaintiff filed a second
application, which the trial court denied, finding that there was no
continuous threat of present physical pain or physical injury. The trial
court, however, during the proceedings on the second application, stated
that it accepted as credible the testimony of the plaintiff that she was
physically, verbally, and sexually abused by the defendant. During the
dissolution proceedings, the plaintiff filed a motion in limine seeking,
on the ground of collateral estoppel, to preclude the defendant from
relitigating the court’s findings in the second restraining order proceed-
ing that he had abused the plaintiff, which the trial court denied. Follow-
ing the dissolution trial, the trial court, in its memorandum of decision,
found that neither party was a credible witness and made no finding
that the defendant had abused the plaintiff. On appeal, the plaintiff
claimed that under the doctrine of collateral estoppel, the trial court,
in the dissolution proceeding, was bound by the facts found in the
previous proceeding on the plaintiff’s second restraining order applica-
tion that the defendant was physically, verbally and sexually abusive to
the plaintiff. Held that the trial court properly declined to apply the
doctrine of collateral estoppel, as the issues involved in the dissolution
action were neither actually litigated nor necessarily determined in the
proceeding on the second restraining order application: in the proceed-
ing on the second restraining order application, the court did not make
any factual findings with regard to the alleged abuse but, rather, made
only a credibility determination regarding the plaintiff, which was not
necessary to its determination to deny the application, the issue to be
determined in the second restraining order proceeding, namely, whether
the plaintiff was exposed to a continuous threat of physical pain or
injury, was not identical to the issues to be determined in the dissolution
proceeding, which concerned whether the marriage was irretrievably
broken down, alimony, child support, educational support, and the equi-
table division of the marital estate, and there was no indication that the
issue of abuse had been necessarily determined in the second restraining
order proceeding; moreover, the court’s denial of the plaintiff’s motions
for sexual behavior evaluation and substance abuse evaluation for the
defendant were discretionary in nature and entitled to deferential review,
and the plaintiff failed to demonstrate that the court’s rulings denying
those motions relied on clearly erroneous factual findings or a misappre-
hension of the law, or that the court otherwise abused its discretion.
Argued December 12, 2017—officially released February 27, 2018
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Windham and tried to the court, Graziani, J.;
judgment dissolving the marriage and granting certain
other relief, from which the plaintiff appealed to this
court. Affirmed.
Joseph Rodowicz, Jr., for the appellant (plaintiff).
Opinion
PER CURIAM. The plaintiff, Kimberly C., appeals
from the judgment of the trial court dissolving her mar-
riage to the defendant, Anthony C.1 On appeal, the plain-
tiff claims that the court improperly (1) awarded the
parties joint legal custody of their minor child by reliti-
gating the issue of the occurrence of domestic violence
between the parties when that issue had been deter-
mined in a prior proceeding and the court was bound
by the finding on domestic violence in that proceeding
by virtue of the doctrine of collateral estoppel, and
(2) denied the plaintiff’s motions for sexual behavior
evaluation and substance abuse evaluation of the defen-
dant. We disagree and, accordingly, affirm the judgment
of the trial court.
The record reveals the following facts and procedural
history. The plaintiff and defendant were married in
Connecticut on July 21, 2011. One minor child was born
during the marriage. On November 27, 2013, the plaintiff
filed an application for relief from abuse from the defen-
dant pursuant to General Statutes § 46b-15 (first
restraining order application).2 That same day, the
court, Graziani, J., issued an ex parte restraining order
effective until the court held a full hearing. On Decem-
ber 2, 2013, the plaintiff commenced the underlying
dissolution action, citing the ground of irretrievable
breakdown of the marriage, and seeking dissolution of
her marriage to the defendant, equitable division of
property and assets, alimony, child support, and sole
custody of the parties’ minor child. On December 11,
2013, the court, Boland, J., issued a one year restraining
order by written agreement of the parties; see General
Statutes § 46b-66 (a);3 which automatically expired on
December 11, 2014. In that written agreement, the
defendant agreed to the restraining order without
admitting the truthfulness of the allegations contained
in the plaintiff’s application for relief from abuse. The
agreement also permitted the defendant to have access
to the parties’ minor child.
On February 4, 2015, the plaintiff filed a second appli-
cation for relief from abuse (second restraining order
application). On February 17, 2015, the court, dos San-
tos, J., conducted a hearing and heard testimony from
the plaintiff about allegations of past abuse by the defen-
dant. Although Judge dos Santos made a statement that
he believed the plaintiff had been abused by the defen-
dant, he nonetheless denied the application, concluding
that the evidence was insufficient to find a ‘‘continuous
threat of present physical pain or physical injury’’
required to issue a restraining order pursuant to § 46b-
15. The plaintiff did not appeal that judgment.
On October 22, 2015, during the pendency of the
dissolution action, the plaintiff filed a motion in limine
seeking to preclude the defendant from relitigating find-
ings in the second restraining order application that
he had physically, verbally, and sexually abused the
plaintiff on the ground of collateral estoppel. Judge
Graziani denied the plaintiff’s motion in limine on
November 18, 2015. A three day dissolution trial took
place from December 9, 2015 through December 11,
2015. Both parties testified at trial. The plaintiff testified
that the defendant had physically, verbally, and sexually
abused her during the course of the marriage. The
defendant denied all allegations of abuse. On February
23, 2016, the court issued its written memorandum of
decision, in which it found that neither the plaintiff nor
defendant were credible witnesses and made no finding
that the defendant had abused the plaintiff. The court
found both parties responsible for the breakdown of
the marriage. It dissolved the marriage, distributed the
marital assets, awarded joint legal custody of the minor
child to the parties with the plaintiff having the primary
residence of the child, and made orders of visitation
which provided the defendant with detailed parenting
time, including overnights. This appeal followed.
In connection with the plaintiff’s first claim that the
doctrine of collateral estoppel precluded the court from
making findings of fact that were made in the previous
proceeding on the plaintiff’s second restraining order
application, we begin by setting forth the applicable
standard of review and legal principles. ‘‘Whether the
court properly applied the doctrine of collateral estop-
pel is a question of law for which our review is plenary.
. . . The fundamental principles underlying the doc-
trine are well established. Collateral estoppel, or issue
preclusion, is that aspect of res judicata which prohibits
the relitigation of an issue when that issue was actually
litigated and necessarily determined in a prior action
between the same parties upon a different claim. . . .
For an issue to be subject to collateral estoppel, it must
have been fully and fairly litigated in the first action.
It also must have been actually decided and the decision
must have been necessary to the judgment. . . .
‘‘An issue is actually litigated if it is properly raised
in the pleadings or otherwise, submitted for determina-
tion, and in fact determined. . . . An issue is necessar-
ily determined if, in the absence of a determination of
the issue, the judgment could not have been validly
rendered.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Cadle Co. v. Gabel,
69 Conn. App. 279, 293–94, 794 A.2d 1029 (2002). ‘‘To
establish whether collateral estoppel applies, the court
must determine what facts were necessarily determined
in the first trial, and must then assess whether the
[party] is attempting to relitigate those facts in the sec-
ond proceeding. . . . In order for collateral estoppel
to bar the relitigation of an issue in a later proceeding,
the issue concerning which relitigation is sought to be
estopped must be identical to the issue decided in the
prior proceeding.’’ (Citation omitted; emphasis in origi-
nal; internal quotation marks omitted.) Kenneson v.
Eggert, 176 Conn. App. 296, 305, 170 A.3d 14 (2017).
The plaintiff argues on appeal that under the doctrine
of collateral estoppel, the trial court in the dissolution
action was bound by the facts found in the proceeding
on the second restraining order application that the
defendant was physically, verbally, and sexually abu-
sive to the plaintiff. ‘‘To establish whether collateral
estoppel applies, the court must determine what facts
were necessarily determined in the first trial, and must
then assess whether the [party] is attempting to reliti-
gate those facts in the second proceeding.’’ (Internal
quotation marks omitted.) Marques v. Allstate Ins. Co.,
140 Conn. App. 335, 340, 58 A.3d 393 (2013). We now
turn to the facts that were found in the second
restraining order proceeding to determine if collateral
estoppel prohibits the relitigation of those facts.4
In the proceeding on the second restraining order
application, Judge dos Santos did not make any factual
findings with regard to the alleged abuse; instead, he
made only credibility determinations regarding the
plaintiff, stating: ‘‘The court accepts as credible the
testimony of the [plaintiff] that she was physically, ver-
bally, and sexually abused by her spouse. . . . I do
believe your client about what happened to her sexually
with her husband. . . . I cannot find based upon the
evidence in its totality that the respondent stalked the
applicant. I cannot find based upon the totality of the
testimony that the respondent threatened the applicant.
And I cannot find that this condition that existed at the
time of the first . . . restraining order that this has
continued. . . . [T]here’s really no basis, no finding
that this condition continues to exist . . . that this is
a continuous threat of present physical pain or physical
injury or that there’s been stalking, or that there’s been
a pattern of threatening by the respondent. So on that
basis, the court does deny the application.’’ The court
also did not make a finding that the plaintiff was being
abused at the time of the hearing. Because the court
denied the second restraining order application, finding
no continuous threat to the plaintiff, we cannot hold
that its credibility finding was necessarily determined,
as the application could have been denied without the
court determining that the plaintiff had been abused in
the past.
Furthermore, there are significant differences
between the issues to be determined in a proceeding
on an application for a restraining order and the issues
to be determined in a dissolution action. Pursuant to
§ 46b-15, ‘‘[d]omestic violence restraining orders will
not issue in the absence of the showing of a threat of
violence, specifically a continuous threat of present
physical pain or physical injury to the applicant.’’ (Inter-
nal quotation marks omitted.) Jordan M. v. Darric M.,
168 Conn. App. 314, 319, 146 A.3d 1041, cert. denied,
324 Conn. 902, 151 A.3d 1287 (2016). By contrast, ‘‘[t]he
purpose of a dissolution action is to sever the marital
relationship, to fix the rights of the parties with respect
to alimony and child support . . . to divide the marital
estate . . . and to consider custody issues.’’ (Citation
omitted; internal quotation marks omitted.) Bouchard
v. Sundberg, 80 Conn. App. 180, 189, 834 A.2d 744 (2003);
see also Ireland v. Ireland, 246 Conn. 413, 430, 717 A.2d
676 (1998) (‘‘best interests of the child must always
govern decisions involving custodial or visitation
matters’’).
The only issue before Judge dos Santos in the pro-
ceeding on the second restraining order application was
whether the plaintiff was exposed to a ‘‘continuous
threat of physical pain or physical injury’’ by the defen-
dant. The issues before Judge Graziani in the dissolution
action, however, were whether the marriage was irre-
trievably broken down, alimony, child support, educa-
tional support, and the equitable division of the marital
estate, as well as what orders of joint custody and
visitation were in the best interests of the parties’ minor
child. Because the issue to be determined in the second
restraining order proceeding, continuous threat of phys-
ical injury, was not identical to the issues to be deter-
mined in the dissolution proceeding, nor was there any
indication that the issue of abuse had been necessarily
determined in the second restraining order proceeding,
collateral estoppel has no application. See, e.g., Gladysz
v. Planning & Zoning Commission, 256 Conn. 249,
261, 773 A.2d 300 (2001); see also Aetna Casualty &
Surety Co. v. Jones, 220 Conn. 285, 297, 596 A.2d 414
(1991). We conclude that the issues involved in the
dissolution action were neither actually litigated nor
necessarily determined in the proceeding on the second
restraining order application, and, therefore, the court
properly declined to apply the doctrine of collateral
estoppel.
The plaintiff’s second claim does not warrant signifi-
cant discussion. The court’s denial of the plaintiff’s
motions for sexual behavior evaluation and substance
abuse evaluation for the defendant were discretionary
in nature and are entitled to deferential review. See
Loughlin v. Loughlin, 280 Conn. 632, 641, 910 A.2d 963
(‘‘in . . . questions arising out of marital disputes, this
court relies heavily on the exercise of sound discretion
by the trial court’’ [internal quotation marks omitted]).
The plaintiff has failed to demonstrate that these rulings
relied on clearly erroneous factual findings, a misappre-
hension of the law, or that the court otherwise abused
its discretion.
Having thoroughly reviewed the record and the argu-
ments of the plaintiff, we conclude that the plaintiff
has not met her burden of proving either of the claims
raised on appeal.
The judgment is affirmed.
* In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
The defendant-appellee did not file a brief in this appeal. On June 2,
2017, this court ordered that the appeal be considered on the basis of the
plaintiff-appellant’s brief and the record only. Similarly, the Department of
Social Services, Bureau of Child Support Enforcement, notified this court
that it did not intend to file a brief in this appeal on April 7, 2017.
2
General Statutes § 46b-15 (a) provides in relevant part: ‘‘Any family or
household member . . . who has been subjected to a continuous threat of
present physical pain or physical injury, stalking or a pattern of threatening
. . . by another family or household member may make an application to
the Superior Court for relief under this section.’’
3
General Statutes § 46b-66 (a) provides in relevant part: ‘‘In any case under
this chapter where the parties have submitted to the court an agreement
concerning the custody, care, education, visitation, maintenance or support
of any of their children . . . the court shall . . . determine whether the
agreement of the spouses is fair and equitable under all the circumstances.
If the court finds the agreement fair and equitable, it shall become part of
the court file, and if the agreement is in writing, it shall be incorporated by
reference into the order or decree of the court . . . .’’
4
As noted previously, the plaintiff sought restraining orders against the
defendant in two separate proceedings. No findings of fact were made in
the first restraining order action, because Judge Boland merely adopted the
agreement of the parties; see footnote 3 of this opinion; that allowed a
restraining order to be issued without the defendant admitting the truthful-
ness of the allegations contained in the plaintiff’s application.