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Sabrina C. v. Fortin

Court of Appeals of Connecticut

September 26, 2017

SABRINA C.[*]
v.
LUCAS FORTIN

          Argued April 26, 2017

         Application for a civil protection order, brought to the Superior Court in the judicial district of Windham, where the court, A. Santos, J., granted the application; thereafter, the court denied the defendant's motion to vacate the protection order; subsequently, the court denied the defendant's motion to reargue, awarded the plaintiff attorney's fees, and the defendant appealed to this court; subsequently, the court, A. Santos, J., granted the plaintiff's motion to extend the protection order, and the defendant filed an amended appeal; thereafter, the court, A. Santos, J., issued articulations of its decisions. Reversed in part; judgment directed.

          Mathew Olkin, for the appellant (defendant).

          Lorraine Carcova, with whom was Anne Louise Blanchard, for the appellee (plaintiff).

          Alvord, Keller and Lavery, Js.

         Syllabus

         The plaintiff filed an application for an order of civil protection against the defendant, which alleged, inter alia, that the defendant had sexually assaulted her in 2015. The trial court granted the application for a civil protection order for one year. Before the order expired, the defendant filed a motion to vacate or modify the order on the basis of certain comments that the plaintiff allegedly had made on social media. At a hearing on that motion, the defendant's counsel represented that no criminal charges had arisen as a result of the alleged assault and that the order should be vacated. The court denied the motion as untimely and on its merits. The defendant filed several motions to reargue, claiming, inter alia, that the initial motion to vacate was not untimely. In her objection, the plaintiff requested attorney's fees for defending against the defendant's multiple motions. The court denied the motions to reargue and granted the plaintiff's request for an award of attorney's fees, and the defendant appealed to this court. Thereafter, approximately one month prior to the expiration of the original order of protection in 2016, the plaintiff filed a motion in the trial court to extend the order for an additional year. The court concluded that no evidentiary hearing was required and that, on the basis of its interpretation of the statute governing orders of civil protection (§ 46b-16a [c]), the need for protection of the applicant still existed. The court extended the order of protection an additional year, and the defendant filed an amended appeal. Held:

         1. The trial court did not abuse its discretion in denying the defendant's motion to vacate or modify the original protection order; although it was clearly erroneous for that court to have concluded that the motion to vacate was untimely where, as here, it was filed within four months of the date judgment was rendered, that erroneous factual finding was not significant, as the trial court relied on two independent grounds for its denial, and after the court acknowledged its erroneous finding, it found that the denial of the motion was nevertheless proper because the defendant had failed to provide a good or compelling reason to vacate or modify the civil protection order.

         2. Contrary to the defendant's claim, the trial court did not improperly substitute the basis for its denial of his motion to vacate or modify the civil protection order in its articulation; in its oral ruling following the hearing on the motion to vacate, the court indicated that it was not persuaded by the defendant's proffered reason to vacate the order, namely, that the defendant had not been charged with a crime following the police investigation into the assault, and that ground did not contradict and was not irreconcilable with the court's articulation that it denied the motion to vacate because the defendant had failed to establish a good or compelling reason to vacate or modify the judgment.

         3. The trial court improperly granted the plaintiff's request for attorney's fees under the bad-faith exception to the American rule without providing the required high degree of specificity in its factual findings to support a determination that the defendant's motions to vacate and to reargue had been filed in bad faith and were without color; although the trial court's articulation revealed that the court was troubled by the defendant's numerous, repetitive, and insufficient filings, and the court found some of the defendant's claims to be unpersuasive and without merit, it did not provide, with a high degree of specificity, factual findings to support a determination that those claims were made in bad faith and were entirely without color, and there was nothing in the record to support the court's finding that the defendant's motivation for the filings was to victimize the plaintiff.

         4. The trial court improperly granted the plaintiff's motion for a one year extension of the civil protection order, as there was no evidence presented at the 2016 hearing that the need for protection still existed; subsections (a) and (c) of § 46b-16a are clear and unambiguous and provide that a victim of sexual assault, after having obtained a civil protection order, can apply to have that order extended if, inter alia, the need for protection still exists, the plaintiff was required to present evidence that her need for protection against the defendant still existed, which she failed to do, and the trial court's basis for its determination that the need for protection still existed-that the plaintiff had been a victim of sexual assault and that the statute was designed to protect such victims-was insufficient without testimony or other evidence to support it.

         Procedural History

          OPINION

          ALVORD, J.

         The defendant, Lucas Fortin, in his appeal and first amended appeal, appeals from the judgment of the trial court denying his motion to vacate or modify a civil protection order that had been granted to the plaintiff, Sabrina C., and from the court's award of attorney's fees to the plaintiff after the court denied his second amended motion for reargument. In the defendant's second amended appeal, he appeals from the ruling of the court granting the plaintiff's motion for a one year extension of the civil protection order. The defendant claims that the court improperly (1) denied his motion to vacate or modify the civil protection order on erroneous factual and legal grounds, (2) changed the basis for its denial in a subsequently issued articulation, (3) awarded the plaintiff attorney's fees under the bad-faith exception to the American rule without setting forth an adequate factual basis, and (4) granted the plaintiff's motion for a one year extension of the civil protection order without any evidence to support a finding that her need for protection still existed. We agree with the defendant's third and fourth claims, and, accordingly, we remand the matter to the trial court with direction to vacate the award of attorney's fees and to vacate the order extending the civil protection order to November 24, 2017.

         The following facts, which either were found by the trial court or are undisputed, and procedural history are relevant to our analysis. On November 10, 2015, the plaintiff filed an application for an order of civil protection pursuant to General Statutes § 46b-16a, [1]alleging that the defendant had sexually assaulted her on November 8, 2015. The court issued an ex parte civil protection order that prohibited the defendant's contact with the plaintiff. The ex parte order expired on November 24, 2015, the date of the scheduled hearing on the plaintiff's application.

         At the hearing, the plaintiff testified as follows. She and the defendant had been longtime friends. The evening of November 7, 2015, she had plans to ‘‘hang out'' with the defendant and another friend. Because they would be consuming alcohol, the plaintiff planned on spending the night at the defendant's house. The plaintiff ‘‘drank a little bit too much, '' and went inside the defendant's house around midnight. The next thing she remembered was waking up with her pants down and the defendant digitally penetrating her. She punched him in the face and ran out the door. The defendant also testified at the hearing, and he claimed that the plaintiff initiated sexual contact with him and that he responded by digitally penetrating her. He acknowledged that she then punched him in the face.

         The court ‘‘credited the plaintiff's testimony and not the defendant's'' and granted the plaintiff's application for a civil protection order. The terms of the order required the defendant to surrender all firearms; prohibited him from assaulting, abusing or harassing the plaintiff; prohibited any contact with the plaintiff; and required him to stay 100 yards away from the plaintiff. The expiration date of the order was November 24, 2016.

         On March 8, 2016, the defendant, as a self-represented party, filed a ‘‘motion to vacate civil protective order, '' claiming that the plaintiff commented on social media that ‘‘she is not afraid'' of him and that ‘‘she will take matters into her own hands.'' The defendant also claimed that the plaintiff was ‘‘trying . . . to get me to violate the order.'' On April 19, the plaintiff filed an objection to the defendant's motion on the following grounds: ‘‘The defendant's motion to vacate the civil protective order recites new facts for the court to consider. In this case, judgment has entered. The appeal period has expired. The period of time in which to open and modify a judgment has expired. It would be improper for the court to hear a motion to vacate.''

         The court held a hearing on April 26, 2016, to consider the defendant's motion to vacate and the plaintiff's objection. At the beginning of the hearing, the court asked the defendant, now represented by counsel, the following question: ‘‘Counselor, are you asking to vacate it completely, or are you asking to vacate it or modify it?'' The defendant's counsel responded: ‘‘Vacate or in the alternative modify, Your Honor.'' The plaintiff's counsel then requested the opportunity to be heard preliminarily on her objection first, claiming ‘‘procedural'' and ‘‘jurisdiction[al]'' grounds. The court allowed the plaintiff to proceed, and the plaintiff argued that the defendant filed his motion more than four months after the judgment granting the application for a civil protection order had been rendered. In response, the defendant's counsel indicated that the defendant's motion had been filed prior to his representation of the defendant in this matter.

         The court, after noting that the defendant's motion to vacate relied upon events that occurred subsequent to the issuance of the protection order, addressed the defendant's counsel: ‘‘So you're not really questioning the reason why the-the restraining order was-was granted, you're saying after the fact this is why it should be vacated. Do you stand by the statements of your client in connection with the application?'' The defendant's counsel responded: ‘‘I was not aware of the exact basis of the motion until I was shown it today. . . . The basis of our motion that I'm prepared to argue today, Your Honor-my argument is that subsequent information, after the entry of the order, has-has drawn into question the propriety of the continuance of the protection order, specifically that the police investigated it fully and found that there was no probable cause to charge him with any crime. And given that conclusion, we feel it's necessary to revisit.'' The court responded: ‘‘You understand that you don't have to commit a crime to have a-a civil restraining order-or a restraining order granted in a case.'' The defendant's counsel replied: ‘‘Certainly I do, Your Honor. And what I'm going to argue is that at the time the order was issued they were still in the midst of investigating the complaint and had not yet drawn a conclusion about it. The court drew its own conclusion about the-the need for the order. And I'm simply arguing that the balance may have shifted, given the results of the police investigation.'' The court stated: ‘‘Counselor-counselor, the testimony was that your client sexually assaulted the applicant, and I believed her.''

         No other ground for vacating the protection order was proffered by the defendant, and neither party testified at the April 26, 2016 hearing. Immediately after the hearing, the court orally ruled: ‘‘After hearing the argument, I'm going to deny the motion for two reasons. One is that this motion to vacate is not made within 120 days from the adjudication of the-of the case on its merits, and also the reasons to vacate do not test the-the validity of the court's order that was made after hearing the case on the merits.''

         On May 3, 2016, the defendant filed a motion to reargue ‘‘pursuant to Practice Book § 11-12, '' claiming that the court ‘‘overlooked'' a ‘‘controlling principle of law.'' The defendant argued that the 120 day limitation period to file a motion to open a judgment was not applicable to the present case. The defendant cited case law for the proposition that the court had ‘‘inherent power to modify its own injunctions.'' On May 5, the plaintiff filed an objection to the defendant's motion to reargue, claiming, inter alia, that Practice Book § 11-12 was not applicable to decisions that are final judgments for purposes of appeal. On May 6, the defendant filed an amended motion to reargue with the following explanation: ‘‘This motion is in all ways identical to the motion to reargue filed May 2, 2016, [2] except that this motion asks for reargument pursuant to [Practice Book §] 11-11 instead of 11-12.''

         On May 11, 2016, the defendant filed a ‘‘second amended motion to reargue'' for the purpose of amending his prior motions to apprise the court that it had ‘‘misapprehen[ded] . . . a crucial fact.'' The defendant claimed that the court erroneously held that the defendant's motion to vacate the protection order had not been filed within 120 days of the court's judgment when, in actuality, the motion had been filed 105 days after the judgment had been rendered. The defendant additionally claimed that the plaintiff was attempting to ‘‘extract revenge against [the] defendant'' and that the order's ‘‘100-yard stay-away'' restriction had burdened the defendant with ‘‘significant collateral consequences.''

         On May 17, 2016, the plaintiff filed an objection to the defendant's second amended motion to reargue. In her objection, the plaintiff, citing case law, argued that a party must demonstrate a ‘‘good and compelling reason'' in order to prevail on a motion to open a judgment. She claimed that the defendant's motion to vacate the order ‘‘is devoid of facts that would provide a compelling reason to open the judgment'' and that the defendant ‘‘merely recounts feelings and events which he believes transpired since final judgment entered.'' At the end of her objection, the plaintiff requested that the court deny the defendant's motion to reargue and that he ‘‘pay costs for the plaintiff's attorney's fees in defending the four motions filed on this issue.''[3] She did not cite any statutory or case law in support of her claim for attorney's fees.

         On May 17, 2016, the court held a hearing on the defendant's second amended motion to reargue and the plaintiff's objection to that motion. The defendant's counsel began his argument with the statement that the court has ‘‘broad discretion to open and modify a judgment for a good and compelling reason.''[4] He then proffered the following reasons for opening the judgment in the present case: (1) the defendant is subject to ongoing felony arrests for the unknowing, innocent violation of the 100 yard ‘‘stay away'' provision of the order; (2) the 100 yard ‘‘stay away'' provision provides little or no additional protection to the plaintiff; (3) the defendant's life has been impacted because he is fearful of going out in public and being caught in an unknowing violation; and (4) the plaintiff has an agenda to ‘‘extract revenge'' against the defendant by attempting to trap him into violating the 100 yard ‘‘stay away'' provision.

         The plaintiff's counsel responded: (1) the defendant failed to appeal from the granting of the November 24, 2015 civil protection order; (2) the defendant's own conduct resulted in the current restrictions on his life's activities; (3) there is no need to modify the civil protection order; (4) the defendant filed his own application for a civil protection order against the plaintiff in March, 2016, which was denied by the court; (5) the defendant has subjected the plaintiff to several court proceedings on the same issue, which has ‘‘revictimiz[ed] her again and again''; and (6) the court should award attorney's fees to the plaintiff's counsel for ‘‘defending . . . these numerous duplicative motions.'' The plaintiff's counsel requested $4800 in attorney's fees. The defendant's counsel responded that ‘‘we find nothing improper in amending our pleadings as the circumstances require.''

         Neither party testified in court after the arguments by counsel. The court then orally ruled: ‘‘The court found a valid reason to grant the restraining order before. Nothing that has been offered would compel the court to vacate the restraining order, or to even modify it as requested in the second request by the- by the . . . defendant. So the court is not convinced that there's a good and compelling reason to vacate any of the judgment that was entered in this matter, I believe, back in November 24, 2015. So for those reasons the court will-will deny the-the defendant's second amended motion to reargue this case, and his argument to open and modify-or open and vacate- or open and modify the judgment. So the court is denying that.''

         The court then proceeded to address the plaintiff's request for attorney's fees. ‘‘And the court-because of the numerous requests that the defendant . . . has made, the court does feel that the plaintiff's attorney ought to be paid attorney's fees for defending all these various motions, and even in motions that are new for today. So based upon the arguments made, the court will grant that request and order attorney's fees to the plaintiff in the amount of $1500.'' The defendant filed his original appeal from the award of attorney's fees on May 20, 2016. The defendant subsequently filed his first amended appeal, dated May 23, 2016, to include the denial of the defendant's motion to vacate the civil protection order.

         On May 26, 2016, the defendant filed a motion for articulation requesting that the trial court articulate the factual and legal basis for its oral rulings on April 26 and May 17, 2016. Granting the motion for articulation, the court issued a written memorandum of decision on June 30, 2016, addressing the defendant's requests. In its articulation, the court conceded that it erroneously had found that the motion to vacate the civil protection order had not been filed within 120 days of the original adjudication. The court acknowledged that the defendant's motion had been filed 105 days after the judgment had been rendered by the court. Nevertheless, the court stated that the denial of the defendant's motion had been proper because he ‘‘failed to establish a good or compelling reason to vacate or modify the November 24, 2015 judgment.''

         The court articulated that all of the proffered reasons presented by the defendant at the May 17, 2016 hearing on the motion for reargument had been ‘‘unpersuasive and not . . . compelling reason[s] to vacate or modify the judgment.'' The court noted that the defendant's primary argument in support of his motion to vacate the civil protection order had been that ‘‘the rape kit came back negative and the police did not find probable cause to charge the defendant with a crime.'' The court reiterated that it had found the plaintiff's testimony about the sexual assault to be credible. Moreover, the court articulated that it had responded to the defendant's primary argument at the April 26, 2016 hearing by stating that the plaintiff did not have to prove that a crime had been committed beyond a reasonable doubt in order to be granted a civil protection order.

         With respect to the award of attorney's fees, the court provided the following basis for its order. ‘‘By filing the motion to vacate, the motion to reargue, two amended motions to reargue without any merit, the defendant continues to victimize the victim. Additionally, the defendant filed an application for a civil protection order against the plaintiff, which the court heard and denied on March 22, 2016. The defendant's application was without merit.

         ‘‘The arguments advanced by the defendant's counsel at the May 17, 2016 hearing were the same arguments advanced at the April 26, 2016 hearing that were not accepted by the court. They have been repeated in the various memoranda and motions filed by the defendant's counsel. A motion to reargue ‘is not to be used as an opportunity to have a second bite at the apple' . . . . In awarding attorney's fees to the plaintiff's counsel, ...


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