K.D. v. D.D., 214 Conn. App. 821 (2022) (restraining order & subjective versus objective standard for threat)
Officially released September 6, 2022
In Short: The trial court erred in granting a restraining order pursuant to § 46b-15 because it applied a subjective standard as to Wife’s fear rather than objective standard as to a pattern of threatening.
Wife filed an application for relief from abuse pursuant to C.G.S. § 46b-15. Ex parte relief was granted on the papers and the matter was set down for an evidentiary hearing. At the evidentiary hearing, Wife testified that there was a pending dissolution of marriage action and she was “increasingly afraid” of Husband. Wife testified about an incident where she encountered Husband at a restaurant, claiming that his demeanor and eye contact were aggressive.
Wife introduced a text message into evidence sent by Husband while she was at the restaurant stating “Enjoy your date!” followed by emails later that evening and into the next day, which included the statements: ‘‘[y]ou have ‘fucked’ all these ‘dinner guests’ while making me watch and abusing me. I will show you. Is that (unsafe) for those you have violated? Let me know when I should divulge your penchant for underage people.’’ and “by underage, I meant legally permissible but young.’’
The trial court issued a restraining order finding that Husband’s conduct created a pattern of threatening, citing Wife’s fear and Husband’s choice to extend the interaction. Husband appealed, arguing that the trial court did not apply the appropriate legal standard for “pattern of threatening.” The Appellate Court applied plenary review.
The Appellate Court noted that C.G.S. § 46b-15 incorporates the definition of threatening from C.G.S. § 53a-62, which provides that “[a] person is guilty of threatening in the second degree when: (1) By physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury, [or] (2) (A) such person threatens to commit any crime of violence with the intent to terrorize another person, or (B) such person threatens to commit such crime of violence in reckless disregard of the risk of causing such terror ….’’ The Appellate Court noted that this statute requires the use of an objective standard. The Appellate Court also noted that the definition of “pattern of threatening” under § 46b-15 is not limited to that defined in § 53a-62 and so considered common usage as well.
The Appellate Court found that the trial court viewed the evidence through Wife’s subjective reaction to Husband’s conduct. The Appellate Court held that, while it is appropriate for a trial court to consider the applicant’s subjective fear, it is not statutorily required for a finding of threat. The trial court may consider the subjective reaction of the victim but must apply an objective standard. Thus, the Appellate Court concluded that the trial court misconstrued the statute and applied an incorrect legal standard by limiting its analysis to a subjective standard.
The judgment was reversed and remanded with direction to vacate the restraining order.