Opinion
No. FA 07-4014391M
February 1, 2008
MEMORANDUM OF DECISION RE MOTION TO MODIFY AND/OR TERMINATE RESTRAINING ORDER
The defendant Ann Marie Carlson, by motion dated November 16, 2007, seeks to modify a restraining order dated September 26, 2007, issued against both her and John Mizesko. She asks in this motion that the restraining order be terminated only as to her.
The restraining order in effect at this time was initiated by Ms. Carlson in a case bearing Docket No. FA 07 4014263 and heard on September 26, 2007 by the undersigned. After taking about two hours of testimony, including that of both Ms. Carlson and Mr. Mizesko, the parties agreed that cross restraining orders could enter. The court felt that this was a fair and equitable resolution of the matter based on the testimony presented by both parties and thereupon ordered that cross restraining orders should enter.
On Friday, January 15, 2008, both parties appeared in court to consider Ms. Carlson's motion to modify. Her written motion, submitted on judicial form 174, states that the reason she seeks modification based on a change in circumstances is "I have never stalked, called harrased John, I am a law abiding citizen, and this order was a dual order for convience of Court. John has been arrested for stalking me and has also violated the protective order."
In her opening remarks Ms. Carlson stated that she wanted the restraining order released as to her because she was asked to run for Town Council and that there is an election scheduled in February; she felt that as a candidate for public office, she should not be subject to a restraining order. She also argued that Mr. Mizesko has violated the present restraining order on or about November 9, 2007 when he was seen by her and a companion in the parking lot of her condominium complex where she resides. She stated that Mr. Mizesko was arrested and now faces two felony charges. Mr. Mizesko denies that he is facing felony charges and states that he was charged with only a misdemeanor; moreover, in his opening remarks, he indicated that when the criminal matter is resolved he intends to move away from this area.
Ms. Carlson testified that she still is afraid of Mr. Mizesko and that she has asked State Marshall Joseph Butler on many occasions to meet her at her place of employment to follow her home since she fears Mr. Mizesko will be at her home. On one occasion, when Mr. Butler followed her home after work on November 9, 2007, she saw a car she thought belonged to Mr. Mizesko in her parking lot. Mr. Butler then parked his car and got into Ms. Carlson's auto and Ms. Carlson began to follow the car she felt was operated by Mr. Mizesko. While in pursuit she called the East Haven Police department and she testified that the officer she was talking with ran the plates and confirmed to her that the auto she was following was registered to John Mizesko. She then filed a complaint against Mr. Mizesko. She testified that this was the only instance that Mr. Mizesko was in her parking lot when Mr. Butler followed her home at her request.
During her testimony, the court inquired about her claim that she expected to be a candidate for Town Council in a February election in East Haven. She acknowledged that a municipal election was held in East Haven last November at which members to the Town Council were elected. She did not know which district seat she was running for or whether the election in February was a general election. She testified that the election scheduled in February was not certain as to the date and that she was asked to run for Town Council.
Ms. Carlson called Mr. Butler to testify. He stated that he was a State Marshal who met Ms. Carlson when she was in court on previous occasions. He testified that he agreed to be a "witness" for her and that he did follow her from work to her home on several occasions when Ms. Carlson thought or expected Mr. Mizesko might be in her parking lot. He also testified that that he followed her home from work on November 9, 2007, and on that occasion Ms. Carlson identified a car that she thought was Mr. Mizesko's. Mr. Butler stated that he parked his car, got into her car and that she followed the Mizesko car, at which point she called the East Haven police and was told that the car that they were following was registered to Mr. Mizesko. Subsequently, Mr. Mizesko was arrested for violation of a protective order. Mr. Butler testified that Ms. Carlson was very afraid of Mr. Mizesko.
In the instant matter for the applicant Ms. Carlson to sustain her burden in her attempt to modify the restraining order issued by the undersigned on September 26, 2007, she must show that there has been a substantial change in circumstances to justify a modification.
FINDINGS
There was no evidence presented by Ms. Carlson that demonstrates any change in the circumstances that were presented at the initial hearing. The situation currently is as volatile and explosive as it was when the court took testimony from the parties in September of 2007. If Mr. Mizesko was at the parking lot of Ms. Carlson's condominium complex in violation of the restraining order then he will be appropriately sanctioned when he faces the charges that have been levied against him. Whether Ms. Carlson's action in following the auto that she felt was driven by Mr. Mizesko out of her parking lot and onto the public streets could conceivably be a violation of the restraining order in effect against her is an issue that was not raised at the present hearing and the court will offer no opinion as to whether she is in violation of the protective order. Suffice it to say that given the accusations of Ms. Carlson and the facts that were elicited at the hearing the parties have not resolved their issues, and in the court's opinion the joint restraining orders should remain in effect.
Finally, the argument raised by Ms. Carlson that court should release her from the constraints of the restraining order because she has been asked to stand for election in a municipal election in East Haven, is obviously not grounds that would constitute a "change" to vacate a restraining order even if it were true, Ms. Carlsons testimony that she was asked to be a candidate for the Town Council for a position she was uncertain about, in an election she claimed to be held in the month after the day on which she was giving testimony (February 2008), and on a day in February that she did not know, was not credible. This testimony tainted all of her other testimony.
The motion filed by Ms. Carlson dated November 16, 2007, to modify and/or terminate the restraining order issued on September 26, 2007 is denied.