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JORDAN M. v. DARRIC M.*

(AC 38640)

Beach, Keller and Harper, Js.

Argued May 24—officially released September 8, 2016**

(Appeal from the Superior Court, judicial district of

New Haven, Emons, J.)

James Hardy, for the appellant (defendant).
Opinion

BEACH, J. The defendant, Darric M., appeals from

the judgment of the trial court granting the application

for a restraining order filed on behalf of the plaintiff,

Jordan M., by Eleanor M., as next friend. The defendant

claims that (1) there was insufficient evidence to support the court’s imposition of a civil restraining order

pursuant to General Statutes § 46b-15, and (2) the court

improperly used the mechanism of a restraining order

to grant custody of Jordan to Eleanor M. We agree that

there was no evidence to support the restraining order

and, accordingly,reverse the judgment of the trial court.

The record in this case is confusing at best and certain

portions of the file appear to have been entered under

incorrect docket numbers. We note as well that only

the defendant has filed a brief. It appears that the two

relevant Superior Court docket numbers are from the

judicial district of New Haven: FA-15-4066397, which is

a custody case; and FA-15-4066531, which is a

restraining order case. The relevant facts, so far as they

can be discerned from the record, are as follows. The

defendant and Heather S. are the parents of Jordan,

who was born in 2013. The Commissioner of the Department of Children and Families filed a neglect petition

against Heather S. In May, 2015, Heather S. purportedly

executed an agreement in which she agreed to give

temporary custody of Jordan to Eleanor M., the defendant’s aunt. In August, 2015, Eleanor M. filed in Probate

Court a petition fortemporary custody of Jordan and for

removal of the defendant and Heather S. as guardians.

On August 7, 2015, the defendant brought an action

in Superior Court against Heather S., seeking sole custody of Jordan (custody case). The defendant filed an

application for an emergency ex parte order of custody.

The court, Goodrow, J., issued an emergency ex parte

order granting the defendant temporary custody on

August 7, 2015.

Following that order, a hearing was held on August

21, 2015, before the court, Emons, J., at which the

defendant was self-represented.1 On that date, the court

granted Eleanor M., also self-represented, permission

to intervene in the case. The court found that the defendant had not established that custody should be transferred from Eleanor M. to him, and ordered that Jordan

remain in the temporary custody of Eleanor M. until

the resolution of the probate case.2 The court permitted

the defendant visitation with Jordan during the day,

with no overnight visitation.

On the night of August 21, 2015, Heather S., the defendant, and Noel R., the defendant’s brother, went with

police officers to the home of Eleanor M. Eleanor M.

did not have a copy of the August 21, 2015 court order,

which had been entered that same day, and the police

required her to return Jordan to the custody of his
parents. In reaction, Eleanor M. filed in the custody

case, on August 24, 2015, an application seeking an

emergency ex parte order of custody. The judgment

file in the custody case that was signed by the court,

Emons, J., on March 4, 2016, reflects that on August

24, 2015, the court found that an immediate and present

risk of physical danger or psychological harm to Jordan

existed and that it was in the best interest of Jordan

to award temporary custody to Eleanor M. The court

further terminated all visitation by the defendant. The

judgment file further states that ‘‘[t]hese orders were

made permanent on October 27, 2015.’’

Also on August 24, 2015, Eleanor M., pursuant to

§ 46b-15 and as next friend of Jordan, filed applications

for civil restraining orders against the defendant

(restraining order case), Heather S. and Noel R., all of

which were granted ex parte.3 On September 4, 2015,

a hearing was held addressing the August restraining

orders; the court continued the matter to September 15,

2015, while the ex parte temporary restraining orders

remained intact. Following the September 15, 2015 hearing, the court held that Eleanor M. had sustained her

burden regarding the § 46b-15 restraining orders against

Heather S., Noel R., and the defendant, and ordered

them to be in effect for one year. The defendant filed

a motion for articulation and a motion for reconsideration, both of which were denied by the court. This

appeal followed. We stress that the only appeal is from

the restraining order case. There is no appeal from the

custody case.

I

The defendant first claims that the evidence was

insufficient to support a finding that he presented ‘‘a

continuous threat of present physical pain or physical

injury,’’ as required by § 46b-15.4 We agree.

‘‘[W]e 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 presented. . . . In determining whether a trial

court has abused its broad discretion . . . we allow

every reasonable 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).
Section 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,

including, but not limited to, a pattern of threatening

. . . by another family or household member may make

an application to the Superior Court for relief under

this section.’’5

A review of the evidence presented at the September

4 and September 15, 2015 hearings regarding the

restraining order reveals that there was no evidence of

a continuous threat of present physical pain or physical

injury, stalking or a pattern of threatening.6 There was

evidence that the defendant, along with others, came

to the home of Eleanor M. on the night of August 21,

2015, with police officers, and took Jordan. The court’s

reasoning for granting the application forthe restraining

order is not clear, but evidence of the defendant’s

behavior on the night of August 21 is the only evidence

in the September 4 and 15 transcripts upon which the

court conceivably could have based its order. There

was no evidence that there was violent or physically

threatening conduct on the night of August 21, 2015,

and there was no evidence that the defendant presented

a threat of physical pain or injury to Jordan. ‘‘The plain

language of § 46b-15 clearly requires a continuous

threat of present physical pain or physical injury before

a court can grant a domestic violence restraining order.’’

Krystyna W. v. Janusz W., 127 Conn. App. 586, 590, 14

A.3d 483 (2011). ‘‘[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.’’ (Internal quotation marks omitted.) Putman v. Kennedy, 279

Conn. 162, 171, 900 A.2d 1256 (2006). ‘‘The legislature

promulgated § 46b-15 to provide an expeditious means

of relief for abuse victims. . . . It is not a statute to

provide a remedy in every custody and visitation dispute, however urgent.’’ (Citation omitted.) Putman v.

Kennedy, 104 Conn. App. 20, 25–26, 932 A.2d 439 (2007).

The defendant’s behavior, although wrongfully and flagrantly in violation of the court’s August 21, 2015 orders,

and not to be condoned, does not satisfy the elements

of § 46b-15. Accordingly, we conclude that the court

improperly granted the restraining order against the

defendant.

II

With respect to the result of the September 4 and

September 15, 2015 hearings, the defendant argues that

‘‘the imposition of a restraining order was an improper

means of determining custody.’’ He argues that the

court committed harmful error in removing custody of

Jordan from his biological parents and placing custody

with Jordan’s aunt, Eleanor M. The defendant’s arguments seem to be based on the September 15 hearing.
The court, however, as it noted in its decision denying

the defendant’s motion for an articulation filed March

8, 2016, made no custody orders at that hearing.7 The

court noted at the outset of the September 4, 2015

hearing that it would hear the restraining order case

first and then the custody case. At the conclusion of

the September 15, 2015 hearing, the court stated: ‘‘I

want the record to be clear that we have three

restraining orders and a custody [case] as well.’’ After

addressing the restraining orders, the court then stated

that, in the custody case, the defendant was seeking

custody of Jordan, and ‘‘in the interest of the child and

in the interest of both parties, I’m . . . going to have

to begin a dialogue on evaluating both parties as to

whether or not they are capable of parenting this child;

one of them, both of them, both of them together, [or]

either one, separately.’’ The court noted that it would

refer the matter to family relations for that purpose. A

court date was set for September 29, and another court

date later was scheduled to occur on October 27. It is

unclear from the record what occurred in that respect

following the September 29, 2015 hearing.8

In its decision denying the motion for an articulation, the court

indicated that there were difficulties regarding the parties’ appearance at the hearings. Due to a lack of an

adequate record, we are unable to review this claim;

see Practice Book § 61-10; we also observe that there

is no appeal in the custody case.9

The judgment granting the restraining order against

the defendant is reversed and the case is remanded with

direction to deny the application for a restraining order.

* In accordance with our policy of protecting the privacy interest of the

applicant for a restraining order, we decline to identify the applicant or

others through whom the applicant’s identity may be ascertained.

** September 8, 2016, the date this decision was released as a slip opinion,

is the operative date for all substantive and procedural purposes.

1 Heather S. did not attend the hearing.

2

It is unclear whether the trial court was deferring to the Probate Court

regarding a resolution of the custody issue or ignoring the prior pending

guardianship petition in Probate Court.

3 The restraining orders as to Heather S. and Noel R. are not at issue in

this appeal.

4 We first consider whetherthe record is adequate forreview. ‘‘An adequate

record usually includes either a memorandum of decision or a transcript

signed by the trial judge. Practice Book § 64-1. Also, the appellant is responsible for providing such to this court. Chase Manhattan Bank/City Trust v.

AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998); Practice

Book § 61-10.’’ In re Francisco R., 111 Conn. App. 529, 531, 959 A.2d 1079

(2008). The defendant did not provide this court with a memorandum of

decision or a signed transcript, but did provide an unsigned transcript. ‘‘On

occasion, we will entertain appellate review of an unsigned transcript when

it sufficiently states the court’s findings and conclusions.’’(Internal quotation

marks omitted.)Id.In the context ofthis case, we conclude thatthe transcript

provides an adequate record for review of the narrow issue presented.

5 General Statutes (Rev. to 2015) § 46b-15 was amended by Nos. 16-34 and

16-105 of the 2016 Public Acts. Those amendments only altered subsection

(a) by requiring the court to provide certain information to persons applying

for relief.

6 The defendant also contends that the court appears to have based the

restraining order on his lack of employment. Because we agree with the

defendant’s argument that the elements of the statute were not satisfied,

we need not address this issue.
7 To the extent that the defendant is challenging the restraining order

itself, the issue was resolved in the defendant’s favor in part I of this opinion.

8 The judgmentfile states that the orders were made permanent on October

27, 2015. No transcripts of further proceedings or court rulings explaining

this aspect of the custody issue have been presented to us.

9 We express no opinion as to any order regarding custody and visitation.

A reasoned resolution of Jordan’s situation cannot be reached in the context

of this appeal.