Opinion
TTDFA184024765S
05-11-2018
JudyAnn Faticanti v. Philip Faticanti
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Seeley, Hope C., J.
MEMORANDUM OF DECISION RE MOTION FOR RECONSIDERATION
Seeley, J.
I. PROCEDURAL BACKGROUND
On February 21, 2018, the court (Murphy, Kevin, J.) issued an ex parte restraining order based upon the applicant’s submission, including her affidavit. This court presided over the hearing held on March 14, 2018. At the hearing, the applicant represented herself and the respondent was represented by counsel. The applicant testified and called one witness, the parties’ adult daughter, and the respondent called one witness, his brother. Following the presentation of evidence, this court determined that the applicant had established by a preponderance of the evidence that the respondent had engaged in a pattern of threatening behavior. This court extended the ex parte restraining order for a period of one year.
Subsequently, the respondent filed a motion for reconsideration in which he moved the court to reconsider its oral decision on March 14, 2018 and deny the applicant’s application for restraining order. In support of the motion, the respondent cited to three cases, Putnam v. Kennedy, 279 Conn. 172, 900 A.2d 1256 (2006), Gail P. v. Bubbico, 114 Conn.App. 43, 968 A.2d 464 (2009), and Jordan M. v. Darric M., 168 Conn.App. 314, 146 A.3d 1041, cert. denied, 324 Conn. 902, 151 A.3d 1287 (2016), without providing any discussion or analysis. The court grants the respondent’s motion to reconsider its ruling. After thoroughly reviewing the proceedings and applicable law in this case, the court denies the respondent’s request for relief, namely, to deny the application for restraining order. The court’s order on March 14, 2018 extending the ex parte restraining order for a period of one year will remain in effect.
II. FINDINGS OF FACT
Based on the credible evidence presented on March 14, 2018, the court makes the following findings of fact.
The court credits the testimony provided by the applicant, as well as by the parties’ adult daughter, Jessica Faticanti. On October 22, 2016, the respondent was arrested following a domestic assault perpetrated on the applicant. At that time, the parties had been married for almost fifty years. During an argument, the respondent became enraged and threw items at the applicant. He grabbed her by the throat and choked her so that she was unable to breathe. After he released her throat, he slapped her across the face and pushed her forcefully so that she fell down and landed so hard on her back that the wind was knocked out of her. When the applicant eventually was able to stand up, she reached for the telephone to call 911 for assistance, but the respondent wrestled her to the ground and took the telephone from her. She was able to get up and run upstairs where she called 911 on a cell phone.
Prior to this incident, the respondent, who possessed numerous guns and ammunition, had threatened the applicant repeatedly that he would shoot her and bury her in the yard where no one would find her. The parties lived on a large property with horses and other animals. The respondent, who drank alcohol heavily in the time period leading to his arrest on October 22, 2016, had engaged in verbal and emotional abuse that increased to physical abuse, including an incident in which the respondent pushed the applicant and closed a door on her arm. No evidence was presented that the respondent had received any treatment to address his heavy consumption of alcohol.
Additionally, approximately two months prior to his arrest, the respondent had threatened to shoot her. Later that same evening, he had thrown boxes containing items belonging to the applicant’s father all over the sidewalk and front lawn. He had left a pile of human feces on the front sidewalk with notes that said " 911 Eat sh** and die" and " You are a piece of sh**."
As a result of the respondent’s conduct on October 22, 2016, he was arrested and charged with threatening in the second degree, assault in the third degree, interfering with an emergency call and disorderly conduct. He was released and told by the police not to return to the home. Nevertheless, he immediately returned to the home that night, which resulted in being arrested for violating the conditions of his release. In the criminal court proceedings, the court issued a full no-contact criminal protective order with the applicant listed as the protected person. Subsequently, the respondent was arrested for violating the criminal protective order because he repeatedly tried to contact the applicant.
The respondent’s criminal cases are in diversionary status through the family violence education program and are scheduled for disposition on May 16, 2018.
During the pendency of the respondent’s cases in the criminal court, the respondent moved to modify the criminal protective order several times so that he could reside in the marital home. The court denied all motions until November 2017. On that date, the applicant did not oppose a modification to the protective order that would permit her to initiate contact with the respondent so that they could discuss issues relating to their pending divorce. The court granted the modification to the criminal protective order.
On December 21, 2017, the applicant and the parties’ adult daughter met with the respondent so that the parties could discuss issues such as selling the marital home. The meeting occurred at the respondent’s brother’s house in Enfield. Present in the home during the meeting were the respondent, his brother, his sister-in-law, his adult daughter and the applicant. While the applicant attempted to discuss selling the marital home, the respondent became fixated on having a car even though his license was suspended due to an arrest for driving under the influence. He became increasingly hostile and aggressive and indicated he was going to take the applicant’s car that she had driven to the meeting. He raised his voice and got very close to the applicant in an aggressive manner. As a result of the respondent’s threatening behavior, the applicant and her daughter gathered their belongings to leave. At that point, the respondent physically blocked them from leaving the room. He grabbed his coat and said he was going to take the applicant’s car since he had his own set of the keys to the vehicle.
The respondent’s brother and sister-in-law were in the adjacent room during the meeting between the parties. Their adult daughter remained in the same room with the parties.
His brother, Virge Faticanti, came from the adjacent room and tried to reason with the respondent, but the respondent only became more aggressive. In the presence of the applicant, the respondent pushed his brother and then grabbed his brother’s shirt with both hands. During this interchange, the parties’ adult daughter called the police because she was afraid that the respondent would hurt his brother, who was eighty-eight years old and a slight man. The respondent walked out of the house and indicated he was taking the applicant’s vehicle. However, the police had arrived at that point, and they were able to diffuse the situation.
III. DISCUSSION
In order for a person to be entitled to a civil restraining order pursuant to General Statutes § 46b-15(a), the applicant must establish by a preponderance of the evidence that he or she " ... has been subjected to a continuous threat of present physical pain or physical injury, stalking or a pattern of threatening, including, but not limited to, a pattern of threatening, as described in section 53a-62, by another family or household member." The legislature indicated that " a pattern of threatening" was not limited to the definition of threatening in the Penal Code, specifically, General Statutes § 53a-62. Therefore, in addition to the definition of threatening contained in Section 53a-62, this court looks to the commonly approved use of the words " pattern" and " threatening." See, e.g., State v. Panek, 328 Conn. 219, 229-30, 177 A.3d 1113 (2018) (it is appropriate to look to the common understanding of a statutory term as expressed in a dictionary); Princess Q.H. v. Robert H., 150 Conn.App. 105, 114-15, 89 A.3d 896 (2014) (since legislature did not incorporate by reference the definitions of " stalking" from the Penal Code into Section 46b-15(a), courts must look to commonly approved usage of the word " stalking" ).
" Pattern" is defined as " a mode of behavior or series of acts that are recognizably consistent." Black’s Law Dictionary (10th ed. 2014). " Threatening" is an adjective, and is defined as " making or implying threats." American Heritage Dictionary (5th ed. 2018). A " threat" is defined as " [a]n expression of an intention to inflict pain, harm, or punishment." Id. Similarly, Black’s Law Dictionary defines " threat" as " [a] declaration, express or implied, of an intent to inflict loss or pain on another." Black’s Law Dictionary (10th ed. 2014). " Threat" also is defined as " [a] declaring of one’s intention to cause harm or loss to another person or property or to limit one’s freedom to act as a lawful, voluntary manner. A threat may be made by innuendo or suggestion as well as by explicit language ..." Webster’s New World Law Dictionary (2010).
Based upon the credible evidence presented at the hearing on March 14, 2018, the applicant established, by a preponderance of the evidence, that she was subjected to a pattern of threatening behavior, based on the plain meaning of that phrase, by the respondent. The respondent engaged in threatening behavior directly towards the applicant on the very first time the parties had face-to-face contact following the modification of the criminal protective order. The respondent raised his voice and got very close to the applicant in an aggressive manner, he blocked her from leaving the room and he threatened to take her vehicle from her. Furthermore, in the applicant’s presence, the respondent became aggressive towards his eighty-eight-year-old brother and then pushed him and grabbed his shirt with both hands.
The conduct engaged in by the respondent on December 21, 2017 represents a continuation of the abusive behavior he had engaged in prior to the imposition of the criminal protective order on or about October 22, 2016 as detailed in this decision. What is extremely concerning for this court is that the respondent again engaged in threatening behavior towards the applicant even though he had participated in and completed counseling through the family violence education program in the criminal court.
In his motion for reconsideration, the respondent claims the application for restraining order should be denied " [i]n view of the holdings in Putnam v. Kennedy, 279 Conn. 172 (2006), Jordan M. v. Darric M., 168 Conn.App. 314, 319, 146 A.3d 1041, cert. denied, 324 Conn. 902, 151 A.3d 1287 (2016), and Gail P. v. Bubbico, 114 Conn.App. 43 (2009)." The court disagrees.
The holding in Putnam v. Kennedy, 279 Conn. 172, 900 A.2d 1256 (2006), is not applicable to this case. The court’s holding is that since it was reasonably possible that adverse collateral consequences of the domestic violence restraining orders could occur to the respondent, his appeals were not rendered moot by virtue of the expiration of the orders during the pendency of the appeals. Based upon respondent’s arguments at the hearing held on March 14, 2018 in the present matter, the respondent may be referring to the decision issued by the Appellate Court after the Supreme Court remanded the case to that court to be heard on the merits. See Putnam v. Kennedy, 104 Conn.App. 20, 932 A.2d 439 (2007).
In Putnam v. Kennedy, 104 Conn.App. 20, 932 A.2d 439 (2007), the court reversed the issuance of a restraining order because there was no factual basis upon which the court could find that the respondent presented a continuous threat of present physical pain or physical injury to the protected party. Putnam v. Kennedy, supra, 104 Conn.App. 24-26. After the respondent’s former wife had obtained a restraining order against the respondent protecting their children, the respondent obtained a restraining order in a different jurisdiction against the former wife protecting the children without advising the court of the first restraining order. Id., 22-23. The respondent’s wife then filed another restraining order, alleging that the respondent had made false allegations in his restraining order application and had failed to inform the court of the initial restraining order. Id. This latter restraining order sought by the respondent’s former wife was granted and the respondent appealed. Id.
When the Appellate Court considered the merits of this appeal, the court reversed the judgment of the trial court and found the trial court had improperly issued the restraining order. The court noted that although the respondent/father had made false allegations in his restraining order application and had brought the restraining order application in a different jurisdiction without revealing the existence of the restraining order against him, these facts did not constitute sufficient evidence to support the trial court’s finding that the parties’ children had been subjected to a continuous threat of present physical pain or physical injury. Id., 24-26. The Appellate Court stated, " Section 46b-15 specifically requires a direct causal link between the defendant and the continuous threat of physical harm to the subject." Id., 25.
First, it should be noted that when the restraining order was issued in Putnam v. Kennedy in 2004, Section 46b-15 was different than the current statute that is applicable in the present case. Specifically, the statute in effect in 2004 provided relief if a family or household member was able to establish that he or she was " subjected to a continuous threat of present physical pain or physical injury by the other person." General Statutes (Rev. to 2003) § 46b-15(a). The statute was amended in 2011 to include additional conduct, namely, stalking and a pattern of threatening, such that if either were established, then it would warrant the issuance of a restraining order. See General Statutes (Rev. to 2011) § 46b-15(a). Section 46b-15 also was amended in 2012 to clarify that a pattern of threatening conduct would include, but is not limited to, " a pattern of threatening, as described in section 53a-62 ..." See General Statutes (Rev. to 2012) § 46b-15(a).
General Statutes (Rev. to 2003) § 46b-15(a) provided that, " [a]ny family or household member as defined in section 46b-38a who has been subjected to a continuous threat of present physical pain or physical injury by another family or household member or person in, or has recently been in, a dating relationship who has been subjected to a continuous threat of present physical pain or physical injury by the other person in such relationship may make an application to the Superior Court for relief under this section."
General Statutes (Rev. to 2011) § 46b-15(a) provided that, " [a]ny family or household member as defined in section 46b-38a 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.
General Statutes (Rev. to 2012) § 46b-15(a) provided that, " [a]ny family or household member as defined in section 46b-38a who has been subjected to a continuous threat of present physical pain or physical injury, stalking or a pattern of threatening, including, but not limited to, a pattern of threatening, as described in section 53a-62, by another family or household member may make an application to the Superior Court for relief under this section.
At the time the restraining order was issued in Putnam v. Kennedy, the applicant was limited to proving that the proposed protected parties had been subjected to a continuous threat of present physical pain or physical injury. In this case, the applicant was not so limited. Based upon the changes in the statute between 2004 and 2018, the applicant was entitled to relief if she established that she had been subjected to (1) a continuous threat of present physical pain or physical injury; or, (2) stalking; or, (3) a pattern of threatening, including, but not limited to, a pattern of threatening, as described in section 53a-62. See, e.g., Princess Q.H. v. Robert H., supra, 150 Conn.App. 117 (trial court found respondent had engaged in stalking and a pattern of threatening; when a respondent engages in either type of conduct described in Section 46b-15(a), then the statute affords relief to the victim).
Putnam v. Kennedy requires there be a direct causal link between the respondent and the continuous threat of physical harm to the applicant to warrant relief. For an applicant to establish that the respondent subjected the applicant to a pattern of threatening behavior, it is sufficient if the threatening behavior is directed towards a third person and done in the presence of the applicant, and if it is similar to the prior conduct directed at the applicant so as to establish a pattern. Under those circumstances, there is a sufficient causal link to warrant the issuance of a restraining order.
However, even if the respondent’s threatening conduct towards his brother in front of the applicant cannot serve as a basis to establish a pattern of threatening behavior, his direct conduct towards the applicant in which he raised his voice and got very close to the applicant in an aggressive manner, then physically blocked her from leaving the room and threatened to take her vehicle from her was sufficient. While the respondent in Putnam v. Kennedy had not engaged in any conduct that constituted a continuous threat of physical harm to the proposed protected parties (the parties’ daughters), the respondent in this case did engage in threatening conduct directly towards the applicant on December 21, 2017.
The respondent’s reliance on Gail P. v. Bubbico, supra, 114 Conn.App. 43, also is misplaced. The trial court granted the applicant’s request for a restraining order, but the Appellate Court reversed the judgment. The court held that there was no evidence that the applicant or her sons were in imminent danger of present harm, nor was there any evidence of any physical altercation. However, as in Putnam v. Kennedy, this case also was decided under the statute that was limited to proving the applicant was subjected to a continuous threat of present physical pain or physical injury.
In the present case, the court did not issue a restraining order based upon a determination that the applicant was subjected to a continuous threat of present physical pain or physical injury; rather, the court determined a restraining order was appropriate because the applicant had established by a preponderance of the evidence that she had been subjected to a pattern of threatening behavior that included the conduct on December 21, 2017 as well as the prior conduct.
Finally, the respondent also cited to Jordan M. v. Darric M., supra, 168 Conn.App. 314, in support of his position that the court should deny the application for restraining order. In that case, the conduct at issue was that the respondent, his brother, and the mother of his child, along with the police, went to the home of his aunt and retrieved his child. Jordan M. v. Darric M., supra, 168 Conn.App. 316. The police were not aware that the respondent’s aunt had been given temporary custody of the child. Id., 317. The respondent’s aunt filed applications for restraining orders against the respondent, the child’s mother and the child’s uncle, which were granted. Id. The respondent appealed and the Appellate Court concluded that the trial court improperly granted the restraining order. Id., 318-20. The court reviewed the evidence presented at the hearings and concluded that, " there was no evidence of a continuous threat of present physical pain or physical injury, stalking or a pattern of threatening." Id., 319.
This case does not support the respondent’s motion for reconsideration. Unlike the facts presented in Jordan M. v. Darric M., as discussed supra, the facts found credible by this court support a determination that the respondent engaged in a pattern of threatening behavior. The respondent’s threatening behavior engaged in on the first time the parties had face-to-face contact in a private setting in over a year, combined with his prior conduct in which he continuously threatened to shoot her and bury her on their large property so no one would find her, leaving human feces with notes stating that he hoped she would die, strangling her so she could not breathe and knocking her down so hard that she lost her breath, and, wrestling the phone away from her to prevent her from calling 911, represents a pattern of threatening behavior.
IV. CONCLUSION
For all the foregoing reasons, the court grants the respondent’s motion to reconsider its ruling. Upon reconsideration and after thoroughly reviewing the proceedings and making the finding of facts herein, and reviewing the applicable law in this case, the court denies the respondent’s request for relief, namely, to deny the application for restraining order. The court’s order issued on March 14, 2018 extending the ex parte restraining order for a period of one year will remain in effect.