C.A. v. G.L. ( 2020 )

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C. A. v. G. L.*
(AC 43139)
Lavine, Elgo and Alexander, Js.**
Syllabus
The defendant appealed to this court from the judgment of the trial court
granting the plaintiff’s application for a civil protection order filed pursu-
ant to statute (§ 46b-16a). The defendant and the plaintiff were neighbors
in a condominium association and for nearly two decades they have
had a contentious relationship. The defendant had an ongoing litigation
action against the plaintiff and other members of the association. The
plaintiff’s application for a civil protection order alleged that the defen-
dant had threatened her. On appeal, the defendant claimed that the trial
court erred in finding that reasonable grounds existed to believe that
he committed, and would continue to commit, acts of stalking, which
constituted the grounds for the civil protection order. Held that the trial
court did not abuse its discretion in concluding that the defendant’s
conduct and statements could be interpreted as threats to the plaintiff’s
physical safety, as the court had an adequate basis on which to find
that the defendant’s escalating behavior met the statutory criteria to
issue a civil order of protection; the record demonstrated that the parties
had a toxic relationship, they were locked in adversarial litigation, the
defendant left messages on the plaintiff’s door on a frequent basis in
an unwanted and harassing manner, causing her to call the police, and
the defendant’s temper was escalating, and, thus, the court reasonably
found that the defendant’s statements, including his comment that he
was ‘‘coming for’’ the plaintiff, could be interpreted in such a way as
to cause the plaintiff to fear for her physical safety; moreover, contrary
to the defendant’s argument, § 46b-16a did not require that there be
prior threats or instances of physical violence for a party to reasonably
fear for her physical safety.
Argued September 17—officially released December 15, 2020
Procedural History
Application for a civil protection order, brought to
the Superior Court in the judicial district of New London
and tried to the court, Knox, J.; judgment granting the
application, from which the defendant appealed to this
court. Affirmed.
Cody A. Layton, with whom was Drzislav (Dado)
Coric, for the appellant (defendant).
Opinion
LAVINE, J. The defendant, G. L., appeals from the
judgment of the trial court granting a civil protection
order in favor of the plaintiff, C. A.1 On appeal, the
defendant claims that the trial court erred in finding
that reasonable grounds existed to believe that he com-
mitted, and would continue to commit, acts of stalking
constituting grounds for the issuance of a civil protec-
tion order. We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The parties are longtime neighbors
who live one floor apart in a condominium association
(association). For nearly two decades, they have had
a contentious relationship. At all relevant times, the
defendant was engaged in litigation against the plaintiff
and other members of the association. On May 1, 2019,
the plaintiff filed an application for a civil protection
order, pursuant to General Statutes § 46b-16a,2 alleging
that the defendant had threatened her on April 22 and
23, 2019. She subsequently withdrew this application
on May 13, 2019. On May 17, 2019, however, after speak-
ing to the police, the plaintiff again filed an application
for a civil protection order.
The court held an evidentiary hearing on the plain-
tiff’s application on May 28, 2019.3 At the conclusion
of the hearing, the court granted the application and
ordered that the defendant ‘‘not assault, threaten, harass,
follow, interfere [with], or stalk’’ the plaintiff for a six
month period.4
The court found that the parties had a difficult ongo-
ing relationship and that the defendant was ‘‘not an
easy neighbor to have,’’ citing ‘‘the fact that some of
[his] neighbors had to come testify.’’ The court found
that ‘‘every time that [the defendant is] present, [the
plaintiff] feels threatened. . . . Whether it is how you
raise your voice. Whether you’re following her in the
course of a communication. Whether she just appears
and you engage her in an angry dialogue.’’
The court further found that the defendant’s aggres-
sive behavior was ‘‘actually increasing and escalating
with regard to [the plaintiff].’’ His ‘‘anger . . . with
regard to the litigation is escalating well beyond the lit-
igation, in that, [the plaintiff] has cause to be concerned
by [the defendant’s] threatening behavior, which seems
to be persisting over a course of time, but actually has
persisted more recently . . . .’’ In finding that the
defendant’s threatening behavior was escalating recently,
the court relied on several threatening statements that
he had made to the plaintiff, as well as the fact that
the plaintiff had called the police on May 17, 2019.
The court found that the defendant had threatened
the plaintiff on April 23, 2019, by stating that he was
‘‘coming for’’ her.5 The plaintiff installed security cam-
eras around her condominium unit on May 1, 2019, to
which the defendant objected. The defendant left notes
and documents, concerning the litigation that he had
initiated against the plaintiff, on the plaintiff’s door on
a daily basis. The plaintiff occasionally posted messages
relating to the litigation on the defendant’s door. In grant-
ing the motion, the court highlighted the fact that ‘‘[the
plaintiff] actually called the police [on May 17, 2019],
because of her concerns of [the defendant’s] threaten-
ing behavior.’’ The plaintiff filed her application for a
civil protection order that day. On her return from the
courthouse, the plaintiff overheard the defendant say
that ‘‘[the plaintiff had been] harassing people for years
with [her] tits and . . . cocktail uniform.’’ At that point,
the plaintiff dreaded going home and began carrying
Mace.
The day before the hearing, on May 27, 2019, the
plaintiff overheard the defendant talking to a neighbor
about ‘‘all the things he was going to do to me . . .
and one’s going to be, I’m going to lose my job.’’ The
defendant did not know that the plaintiff could hear
him when he made the statement. After the defendant
made the statement, the plaintiff and the defendant had
a heated exchange.
After the plaintiff rested at trial, the defendant moved
to dismiss the case, arguing that the plaintiff had not
established, pursuant to the definition of stalking set forth
in § 46b-16a (a), ‘‘two or more wilful acts perform[ed
in] a threatening predatory or disturbing matter,’’ and
characterizing the matter as ‘‘neighbors quibbling over
issues . . . with [the] condo association.’’ The court
denied the defendant’s motion.
Ultimately, the court found that there were reason-
able grounds to believe that the defendant had ‘‘com-
mitted acts constituting grounds for issuance of a pro-
tective order under [§ 46b-16a], and that [he would]
continue to commit such acts or acts designed to intimi-
date or retaliate against the applicant.’’ The court there-
upon found that the plaintiff had met her burden and
issued a civil order of protection pursuant to § 46b-16a
for a period of six months, until November 28, 2019.
This appeal followed.
The defendant argues that the evidence was insuffi-
cient to warrant the court’s issuance of a civil order of
protection against him. The defendant claims that his
statements and messages to the plaintiff did not consti-
tute ‘‘two or more wilful acts [performed] in a threat-
ening, predatory, or disturbing manner that caused [the
plaintiff] to reasonably fear for her physical safety.’’
For that reason, the defendant claims that the court
abused its discretion in granting the order of protection.
We do not agree.
We begin our analysis by setting forth the relevant
legal principles and applicable standard of review. ‘‘We
apply the same standard of review to civil protection
orders under § 46b-16a as we apply to civil restraining
orders under General Statutes § 46b-15. Thus, we will
not disturb a trial court’s orders unless the court has
abused its discretion or it is found that it could not
reasonably conclude as it did, based on the facts pre-
sented. . . . In determining whether a trial court has
abused its broad discretion . . . we allow every rea-
sonable presumption in favor of the correctness of its
action. . . . Appellate review of a trial court’s findings
of fact is governed by the clearly erroneous standard
of review. . . . A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed. . . . Our deferential standard of review,
however, does not extend to the court’s interpretation
of and application of the law to the facts. It is axiomatic
that a matter of law is entitled to plenary review on
appeal.’’ (Internal quotation marks omitted.) Kayla M.
v. Greene, 163 Conn. App. 493, 504, 136 A.3d 1 (2016).
‘‘The court’s discretion, however, is not unfettered; it
is a legal discretion subject to review. . . . [D]iscretion
imports something more than leeway in [decision mak-
ing]. . . . It means a legal discretion, to be exercised
in conformity with the spirit of the law and in a manner
to subserve and not to impede or defeat the ends of
substantial justice . . . .’’ (Internal quotation marks
omitted.) Harris v. Neale, 197 Conn. App. 147, 157, 231
A.3d 357 (2020). ‘‘We do not examine the record to
determine whether the trier of fact could have reached
a conclusion other than the one reached . . . as [t]he
conclusions which we might reach, were we sitting
as the trial court, are irrelevant.’’ (Citations omitted;
internal quotation marks omitted.) Rostain v. Rostain,
214 Conn. 713, 715–16, 573 A.2d 710 (1990).
Section 46b-16a provides in relevant part: ‘‘Any per-
son who has been the victim of . . . stalking may make
an application to the Superior Court for relief under
this section . . . . If the court finds that there are rea-
sonable 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 pro-
tection of the applicant.’’
Section 46b-16a (a) defines stalking as ‘‘two or more
wilful acts, performed in a threatening, predatory or
disturbing manner of: Harassing, following, lying in wait
for, surveilling, monitoring or sending unwanted gifts
or messages to another person directly, indirectly or
through a third person, by any method, device or other
means, that causes such person to reasonably fear for
his or her physical safety.’’
‘‘The standard to be applied in determining the rea-
sonableness of the victim’s fear in the context of the
crime of stalking is a subjective-objective one. . . . As
to the subjective test, the situation and the facts must
be evaluated from the perspective of the victim, i.e.,
did she in fact fear for her physical safety. . . . If so,
that fear must be objectively reasonable, i.e., a reason-
able person under the existing circumstances would
fear for his or her physical safety.’’ (Citations omitted;
internal quotation marks omitted.) State v. Russell, 101
Conn. App. 298, 319, 922 A.2d 191, cert. denied, 284
Conn. 910, 931 A.2d 934 (2007).
‘‘[A]n applicant for a civil protection order on the
basis of stalking is required to prove only that there
are reasonable grounds to believe that a defendant
stalked and will continue to stalk . . . .’’ Kayla M. v.
Greene, supra, 163 Conn. App. 503.6 A finding of reason-
able grounds to believe stalking occurred is equivalent
to a finding of probable cause that stalking occurred.
Id., 506. ‘‘While probable cause requires more than mere
suspicion . . . the line between mere suspicion and
probable cause necessarily must be drawn by an act of
judgment formed in light of the particular situation and
with account taken of all the circumstances. . . . The
existence of probable cause does not turn on whether
the defendant could have been convicted on the same
available evidence. . . . In dealing with probable cause
. . . as the very name implies, we deal with probabili-
ties.’’ (Internal quotation marks omitted.) Id., 506–507.
Applying the aforementioned principles, the trial court
found that there was sufficient evidence reasonably to
conclude that there were grounds to issue a civil protec-
tion order. On appeal, the defendant’s arguments all
center on the assertion that none of his conduct could
cause the plaintiff to reasonably fear for her safety.7 He
first argues that his statements to the plaintiff did not
constitute stalking because he had never used or threat-
ened physical force against the plaintiff. He further argues
that both his comment about the plaintiff losing her job
and his comment about ‘‘coming for’’ the plaintiff could
only be construed by the plaintiff as relating to the
litigation, rather than as physical threats.8 Similarly, he
argues that the documents and the notes he left on the
plaintiff’s door related solely to the litigation between
them and it was thus reasonable for him to do so as a
means of communicating in regard to the lawsuit.9 We
do not agree that the court abused its discretion when
it decided that, under these facts, the defendant had
stalked the plaintiff.
In considering the defendant’s statements and the
pattern of conduct in the month prior to the hearing,
the court found that the plaintiff and the defendant had
a contentious relationship and that the circumstances
indicated that the defendant’s anger was increasing.
The court’s conclusion must be evaluated with the nature
and the history of this troubled relationship in mind.
Context is important. The court cited the defendant’s
April 23, 2019 statement that he was ‘‘coming for’’ the
plaintiff, his May 17, 2019 statement that ‘‘[the plaintiff
had been] harassing people for years with [her] tits and
. . . cocktail uniform,’’ and his May 28, 2019 statement
that the plaintiff would lose her job.10 The court also
cited the fact that the plaintiff had called the police on
May 17, 2019, to report the defendant’s leaving notes
on her door daily. Given these findings, which the defen-
dant does not challenge, the court acted well within its
discretion to find the defendant’s anger had ‘‘persisted
more recently’’ and was ‘‘escalating well beyond the
litigation.’’ Consequently, the court reasonably could
conclude that the plaintiff reasonably feared for her
physical safety as a result of the defendant’s stalking,
as required by § 46b-16a (a).11
The defendant argues that the trial court could not
conclude that the statutory element that a person rea-
sonably fear for her physical safety was met when there
was no threat or suggestion of physical harm. He points
to the evidence that he had never used or explicitly
threatened physical force against the plaintiff. At the
outset, we note that the court could have reasonably
construed the defendant’s April 23 statement that he
was ‘‘coming for’’ her as a physical threat under the
statute. Even if we were to accept the defendant’s con-
textual argument that this statement could not be con-
strued as a threat due to the litigation between the
parties, however, the statute does not require that there
be prior threats or instances of physical violence for a
party to reasonably fear for her physical safety. Our
conclusion is consistent with previous decisions of this
court.12 For example, in Stacy B. v. Robert S., 165 Conn.
App. 374, 388, 140 A.3d 1004 (2016), the defendant con-
tended that ‘‘there was not a scintilla of evidence pre-
sented to the court that the defendant is or ever has been
physically dangerous to anyone.’’ (Internal quotation
marks omitted.) Nonetheless, this court concluded that,
after two days of testimony, the trial court had a suffi-
cient basis on which to conclude that ‘‘a reasonable per-
son in the plaintiff’s position would have cause to fear
for his own or a third person’s physical safety, even if
the plaintiff did not produce evidence of past physical
violence committed by the defendant.’’ Id. (Footnote
omitted.) In Kayla M. v. Greene, supra, 163 Conn. App.
506, this court held, with regard to the objective prong
of the test, that ‘‘[t]o establish a stalking violation,
[p]roof of verbal threats or harassing gestures is not
essential . . . . [D]efendants’ obsessive behaviors,
even in the absence of threats of physical violence,
[may] reasonably [cause] their victims to fear for their
physical safety.’’ (Emphasis added; citations omitted;
internal quotation marks omitted.)
In the present case, the court found that the defen-
dant had ‘‘anger . . . with regard to the litigation,’’
raised his voice, ‘‘engage[d] [the plaintiff] in . . . angry
dialogue . . . follow[ed] the plaintiff in the course of
. . . communication[s],’’ and generally was known to
be a difficult neighbor. The court found that this anger
was persisting and escalating. The court was entitled to
credit the testimony of the plaintiff’s witnesses in reach-
ing its conclusion that there was a reasonable basis for
the plaintiff to feel harassed and fearful of physical harm.
The defendant further contends that the statements
he made, as well as his conduct of leaving notes on the
plaintiff’s door, must be viewed in the context of the
litigation between him and the plaintiff. In his brief and
at oral argument, he argued that his statements that
the plaintiff would lose her job, and that he was coming
for her, can only be interpreted as relating to the legal
proceedings between the two parties. Thus, he contends
that it was unreasonable for the court to infer either
that he intended to cause the plaintiff to fear for her
physical safety, or that any such fear actually was rea-
sonable on her part. We do not agree that the trial court
abused its discretion by concluding that the plaintiff
reasonably feared for her physical safety.13 Taken
together with the testimonial evidence of the parties’
contentious relationship and the defendant’s temper,
which the court found to be escalating, the court reason-
ably found that the defendant’s statements could be
interpreted in such a way as to cause the plaintiff to
fear for her physical safety. In Princess Q. H. v. Robert
H., 150 Conn. App. 105, 116, 89 A.3d 896 (2014), this
court concluded that, although the defendant’s conduct
‘‘might have been completely unrelated to stalking the
plaintiff . . . [t]he court, however, was not presented
with evidence of such a benign explanation, but heard
ample evidence about the parties’ stormy relationship
and the fact that the plaintiff and the defendant were
adverse parties in a civil action at the time of this
occurrence.’’
In the present case, the court found, and the record
demonstrates, that the parties had a toxic relationship,
were locked in adversarial litigation, and the defendant
had left messages on the plaintiff’s door on a frequent
basis. The court also found that the defendant’s anger
was ‘‘well beyond the litigation.’’ The court therefore
had an adequate basis on which to find that the defen-
dant’s escalating aggressive behavior met the statutory
criteria to issue a civil order of protection. We therefore
conclude that the court did not abuse its discretion
in concluding that the defendant sent messages in an
unwanted and harassing manner or that the defendant’s
statements could be interpreted as threats to the plain-
tiff’s physical safety.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with federal law; see 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.
** The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The plaintiff did not file a brief in this court. We therefore decide the
appeal on the basis of the defendant’s brief and the record.
2
General Statutes § 46b-16a (a) provides in relevant part that ‘‘[a]ny person
who has been the victim of . . . stalking 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. . . .’’
3
The hearing considered only the application filed on May 17, 2019, which,
alone, is the subject of the present appeal.
4
Although the civil protection order has since expired, the defendant’s
appeal is not moot. See Ellen S. v. Katlyn F., 175 Conn. App. 559, 561 n.2,
167 A.3d 1182 (2017) (‘‘The expiration of a six month domestic violence
restraining order issued pursuant to General Statutes § 46b-15 does not
render an appeal from that order moot due to adverse collateral conse-
quences. Putman v. Kennedy, 279 Conn. 162, 164–65, 900 A.2d 1256 (2006).
We apply that principle to the order of civil protection here [under § 46b-
16a].’’).
5
In addition to this statement, the plaintiff contended in her May 17, 2019
application that, on April 22, 2019, ‘‘I was threatened by [the defendant] in
the hallway of my condo association. He said my days are done. I’m all
done. I’m going down.’’
6
We note that Kayla M. was decided in 2016 when the statute still con-
tained its previous definition of stalking. General Statutes (Rev. to 2015)
§ 46b-16a (a) provides in relevant part: ‘‘Any person who has been the victim
of . . . 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 . . . .’’ (Emphasis added.) General Statutes (Rev. to 2015) § 53a-
181d (b) sets forth the statutory definition of stalking, providing in relevant
part: ‘‘A person is guilty of stalking in the second degree when . . . (1)
Such person knowingly engages in a course of conduct directed at a specific
person that would cause a reasonable person to fear for such person’s
physical safety or the physical safety of a third person . . . .’’ In 2017,
subsection (a) of § 46b-16a was amended to replace the references to General
Statutes §§ 53a-181c, 53a-181d, and 53a-181e with its current definition of
stalking. See Public Acts 2017, No. 17-99, § 1. The statutory change merely
modifies the definition of stalking itself, and did not affect the applicable
language of subsection (b), which provides in relevant part: ‘‘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. . . .’’
General Statutes § 46b-16a (b). Thus, Kayla M. is still applicable with respect
to the general standard of proof § 46b-16a (b) requires, namely, that an
applicant for a civil protection order ‘‘prove only that there are reasonable
grounds to believe that a defendant stalked and will continue to stalk.’’
Kayla M. v. Greene, supra, 163 Conn. App. 503.
7
The defendant also claims that the court could not have found that he
had intended the plaintiff to fear for her physical safety. His argument misses
the point. The statute makes no mention of the defendant’s intent with
respect to the element that he caused the plaintiff to fear for her physical
safety. Rather, the statutory language refers to ‘‘two or more wilful acts,’’
which cause a person to reasonably fear for his or her own physical safety.
See General Statutes § 46b-16a (a).
8
With respect to his statement that the plaintiff would lose her job, the
defendant also argues that because it references employment, it is not
relevant to her physical safety on its face. The court, however, referenced
this statement as support for its conclusion that the defendant’s overall
pattern of behavior was persisting. Moreover, the defendant’s other state-
ment, that he was ‘‘coming for’’ her, could indeed be reasonably construed
as relevant to her physical safety.
9
The fact that a lawsuit was pending does not inoculate the defendant
against the issuance of a civil order of protection. It is the fact of leaving
the notes, not their content, that makes the conduct objectionable. Although
the defendant had a right to communicate with the plaintiff, who was self-
represented, regarding the litigation, that right does not extend to communi-
cations that are harassing or otherwise unlawful conduct. ‘‘[T]he mere exis-
tence of such a right or privilege does not automatically mean that an
individual is permitted to exercise that right entirely unfettered and without
adhering to reasonable legal restrictions.’’ S. A. v. D. G., 198 Conn. App.
170, 189, 232 A.3d 1110 (2020).
10
The defendant argues that he made the May 17 and 27, 2019 statements
to third parties and that he did not direct them to the plaintiff. The plaintiff,
however, heard them. She additionally alleged statements that the defendant
made directly to her in her application, including the April 23, 2019 statement.
Whether made directly to the plaintiff or not, these statements all support
the court’s conclusion that the plaintiff’s fear was objectively reasonable.
11
The defendant argues that the plaintiff’s engagement with him undercuts
this conclusion. He notes that the plaintiff left occasional notes on his door,
and that following the defendant’s statement that the plaintiff would lose
her job, the parties had a ‘‘heated discussion.’’ These two points go to the
weight of the evidence and do not preclude the court’s conclusion. See
Kayla M. v. Greene, supra, 163 Conn. App. 510 (rejecting husband’s argument
that plaintiff did not fear for her physical safety because she continued to
interact with him, because there was sufficient evidence in record to support
court’s issuance of protective order).
The defendant also argues in his brief that ‘‘it cannot be overlooked that
the plaintiff willingly withdrew her previous application for a civil order of
protection, wherein these claims served as its basis. This act alone is conclu-
sive evidence that the plaintiff did not fear for her safety.’’ We find this
argument unpersuasive. The plaintiff refiled her application, and the trial
court reasonably could conclude, within its discretion, that she still reason-
ably feared for her safety on the basis of the defendant’s conduct prior to
withdrawing the initial application.
12
We note that the cases discussed subsequently in this opinion were
decided under a previous revision of the statute. See footnote 6 of this
opinion. However, these cases all apply an objective standard of reasonable-
ness for stalking which is sufficient to fulfill the current subjective-objective
statutory threshold. See Kayla M. v. Greene, supra, 163 Conn. App. 510
(discussing purely objective standard of fear in General Statutes (Rev. to
2015) § 53a-181d).
13
As previously discussed, we reject the defendant’s attempt to read an
intent requirement into the statute. See footnote 7 of this opinion.