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Margarita O. v. Fernando I.

Court of Appeals of Connecticut

April 23, 2019


          Argued January 22, 2019

         Procedural History

         Application for relief from abuse, brought to the Superior Court in the judicial district of Stamford-Nor-walk, where the court, Truglia, J., granted the application and issued a restraining order and a certain additional order of protection, and the defendant appealed to this court. Reversed in part; further proceedings.

          Fernando I., self-represented, the appellant (defendant).

          Kevin F. Collins, for the appellee (plaintiff).

          Lavine, Alvord and Elgo, Js.


          ALVORD, J.

         The self-represented defendant, Fernando I., appeals from the judgment of the trial court granting the application of the plaintiff, Margarita O., for relief from abuse and issuing a restraining order pursuant to General Statutes § 46b-15. The defendant claims that the court erroneously (1) determined that he had subjected the plaintiff to a recent pattern of threatening, and (2) ordered the defendant to stay 100 yards away from the plaintiff except ‘‘when both children are present.''[1] We conclude that there was no evidence to support the court's order requiring the defendant to ‘‘stay 100 yards away from the [plaintiff]'' with an exception ‘‘for the 100 yard stay away when both children are present.'' Accordingly, we reverse in part the judgment of the court as to the ‘‘stay 100 yards away'' order and remand the case for a new hearing with respect to any order of protection, if proven necessary by the plaintiff, in situations where the defendant seeks interaction with his children and the plaintiff is present. We otherwise affirm the judgment of the trial court.

         The following facts and procedural history are relevant to our analysis of the defendant's claims. On August 29, 2018, the plaintiff, in a self-represented capacity, filed an ex parte application for relief from abuse, seeking immediate relief against her former spouse, the defendant.[2] In her application, the plaintiff averred under oath that the defendant had ‘‘consistently sent [her] very distressing communications for the past years but in the last few months and weeks (particularly the last [forty-eight] hours) his aggressive electronic communication has been mounting to the point that [she was] very concerned about [her] physical safety.'' In addition, the plaintiff stated that ‘‘[she is] a single woman, [she] work[s] in [New York City] and many nights [she] come[s] back late from work and feel[s] that [she is] exposed [to] potential harm from [the defendant]'' and that ‘‘[t]he [defendant] has his residence in [New York City] but spends almost every day in Greenwich, '' which is the town where she resides. The court, Sommer, J., denied the plaintiff's application and scheduled a hearing for September 12, 2018, in accordance with § 46b-15 (b).

         The parties appeared for the hearing before the court, Truglia, J., on September 12, 2018. At the hearing, the court heard testimony from both parties.[3] The plaintiff testified in relevant part: ‘‘[The defendant] keeps on blaming me for everything that is going on in his life; whether he loses a job, whether he cannot get a job, his life has been destroyed by me. And the reason I'm asking for this order now is because he's more agitated. I think the situation has deteriorated for him quite a bit. He doesn't have a job. He doesn't have any money. Still he blames me for everything that is happening to [him]. . . . In the course of [thirty-six] or [forty-eight] hours, I received three different communications, very disturbing, from him in which some of them he clearly said, you know, like there are implied threats in those communications.'' The plaintiff also testified that, nine years earlier, the defendant had been arrested twice, ‘‘[once] for domestic abuse and [once] for death threats . . . .''[4] The defendant did not dispute the fact of the arrests. The plaintiff explained that she requested relief under § 46b-15 on the basis of a pattern of threatening by the defendant and stated that she believed that she was in physical danger.

         The defendant testified in relevant part: ‘‘I've been [in the Superior Court] [ten] years, and I lost everything in my life here. . . . [B]ut the good part of it is that her claims were considered false, insufficient, unsubstantiated and rejected by the civil court in the divorce trial, by the criminal court twice, by the Department of Children and Families from the state of Connecticut. I was accused of abuse against my own children. So, I was accused of being mentally insane. I had to undergo ten evaluations with independent psychiatrists and psychologists. One was appointed by the court. They all expressed on the record that I'm not a violent man. I never had any history of violence in my life. . . . Furthermore, it was proven . . . and I have all the records. Unfortunately it's [ten] years and maybe a snippet could be portrayed as something lethal, but is, again, false. . . . [T]he plaintiff has a history of deceit, fraud, entrapment, [and] provocations that it goes for years.''[5]

         In addition to the foregoing testimony, the plaintiff submitted several exhibits, including copies of text messages and e-mails that the defendant had sent her. The text messages and one of the e-mails had been written in Spanish. The plaintiff, therefore, in addition to providing copies of the original communications, submitted as an exhibit during the hearing a certified translation of these communications.

         First, on March 29, 2018, the defendant had sent the plaintiff an e-mail, written in English, which stated in relevant part: ‘‘I had your associates in [G]reenwich all over me, from firefighters, police officers, public employees . . . . So I refrained myself from confronting the scene, the last thing I wanted was to make a different sort of scene in front of our kids' doctor . . . . But [I'm] telling you for you to think before you and your attorney speak, what our kids should have experienced and must experience is their parents together, in front of them, telling them the very same message, absolutely in sync, with love, clarity and support, and this has not happened because of you, and it's still not happening because of you. You have prevented this from happening for almost [ten] years, against the law, common sense and their [well-being]. . . . And the reason for that to be the case, as I see it, it's that you don't understand that our relationship only exists due to them, as a result of them, because of them. If they were not in this world, after what you've done in my life until now, I wouldn't even know anything about you, whether you exist or not . . . your conduct is irresolute, without changing tracks in anything, without firing the unethical lawyer only you decided to retain, without giving back to me, reimbursing me, what you must in the name of decency and justice . . . . You don't get it. This is inconceivable to me, the fact you don't even understand what sort of man I am. You do what I tell you, and you have a positive response from me. Period. Why? Because what I tell you is no other thing than what you should have done and should do under the law and what's right in itself. And so happens that it is me saying it. Is there some feminist and related belief against it? Stupidities about control and inconveniences. They can go and dominate themselves . . . we've got [ten] years of this already. There's a law to be obeyed, giving me control over what I must control for being a father (natural law and rights), an outstanding father as you said, and a loving one per the opinion of the court. Yet, one who has lost any and all authority because of you, my parental rights have been curtailed and undermined by you, in detriment of our kids . . . .''

         On April 27, 2018, the defendant sent the plaintiff another e-mail. The certified translation reads in relevant part: ‘‘On Monday I met with a group of friends to pray, etc., and before I had prayed to God, and I was thinking about what your attorney said: ‘you lose . . .', after accusing me of being a Nazi, crazy and an abuser . . . . I have God, and the fact that you have cheated me, robbed me, and swindled me in that way and with that type of people, as well as everything that that brought with it in my life for many years already, it is what it is.

         ‘‘The fact that you have destroyed my life by accusing me of being an abuser and crazy, the inherited good name that your own children bear already stained forever, their father vilified by riffraff of all types, etc., and my own family harmed to an unthinkable extreme . . . . Lack of intelligence and pure evil. . . .

         ‘‘You lack a minimum conscience to understand that decent people don't do what you did and have been doing, they don't hire attorneys and a certain type of them at that-especially, when it was not necessary, it never was . . . nor do they similarly use the police, firemen, schools and ideologized social structures (in a society fragmented by hate due of concepts of race, social class, origin, religion, and questions of identity) in order to harass and destroy the life of the father of their children. Only someone morally and spiritually sick can do such a thing. It's already been almost ten years of this craziness, exclusively carried on by you, even though several groups have done their part due to their respective motivations. You have decided not to change your course, staying firm in the error, the ignominy and the cheating . . . and as if this were not enough, counter to your legal representations and commitments.

         ‘‘The only thing I asked for from the beginning was co-parenting, even after you refused to buy my part of the house and consent to that, and it is specifically what you have refused even until today. And we have all lost so much, but especially on the human level our children, who have not seen their parents greet each other and interact civilly in almost ten years already due to your own decision . . . all their infancy, to the point that it no longer has relevance . . . while at times, for moments and reciprocally you became tired of stupidities like little smiles and that sort of thing in churches and public sites . . . something frankly lunatic. You robbed your children of the opportunity to grow up with two parents, separated but acting civilly toward each other, as ordered by the law according to your own legal representatives.

         ‘‘What were you expecting? Smiles, welcoming and nothing happened here . . . the subject for me has always been our children, not my relationship with you after everything I lived through. And I find it incomprehensible that you don't understand it. My entire investment of love, time, effort, professional decisions, deprivations of all types and resources provided for our children, you have destroyed. You have robbed and defrauded me. Of course, it is important that such injustices cannot remain unpunished. But the curious thing of everything is that someone could think that they could destroy me and dominate me through my relationship with you, something sincerely demented and an exclusive recipe for tragedy. In this sense, I thanked you and I thank God for the good sense that you have given me.

         ‘‘It has not been nor is it easy for me, but my greatest success is being happy in spite of this craziness. Contemplating the possibility of my death many years ago, I understood that the only one who loses here, if I allow this to affect me, is me and those who love me. This would be losing and allowing the bad things to mortify me. I chose to be happy, and although I am very tired and exhausted (deeply exhausted), I am a happy person. The uncertainness of not knowing where I will live tomorrow, in what country, not having a relationship with my daughters and not living with my children as much as I would wish . . . losing contact with them over time . . . having doubts, or if I'm out of work and a roof to live or die under, I don't lose sleep. In one way or another, justice will come, in this life or in the next one. Contemplating eternity, our temporary stay here on earth is ephemeral . . . and we are almost [fifty] years old. Statistically speaking we have less time left than we have lived. . . .

         ‘‘On the other hand, for the professional that I am, beyond the destruction of my career. And in your case, you only decided to be it seriously-support through the subject of identity policies, which makes me happy for my children-after destroying my life, professional and in general, not when we were married and the family needed it more than ever. You didn't do more than complain that you had to work part-time, and weren't worth anything at home or as a mother. . . . Finally, a very serious mistake, for which I have paid with interest in this world. And what have you gained? Destroying the father of your children, robbing him, and a job that you hate. Not even a mentally retarded person acts that way. As I said, injustices will be paid for. And I hope that you can do it for yourself in time, because otherwise your debt will be eternal before God.''

         On August 28, 2018, the defendant sent the plaintiff a series of text messages. With respect to the first message, the certified translation reads in relevant part: ‘‘Sometimes I wonder how it is possible that a person goes up to receive the Host after what you have been doing and continue doing. Formeit's incomprehensible. You have no conscience, that has been the big problem. . . . I don't have a job, I have to assume debts to live (if I can) and probably I have to do with nothing after your thefts, fraud, social, judicial, and litigious persecutions-litigations that I will continue until justice is done, until I die if necessary. On the other hand, if you knew the garbage that I have had to live with of harassment and the like by the groups connected to your riffraff lawyer, whom I told you that you have to get rid of in order to do things right, so even someone like you would be surprised. You must think that that short time is all it takes, that time heals and stupidities like that. It's been almost [ten] years, since I made you a roadmap of what you would have to do or not do justly, what is right and is correct among good people. That is the only thing that matters. And now the only thing that helps is to return to me what is mine with interest, that you make right all the harm you have done in the proper way, and return to me my relationship with my daughters, in addition to being sorry and asking for ...

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