Opinion
AC 45304
03-14-2023
V. V. v. V. V.
V. V., self-represented, the appellant (defendant).
V. V., self-represented, the appellant (defendant).
Alvord, Seeley and Sheldon, Js.
SHELDON, J. The self-represented defendant, V. V., appeals from the judgment of the trial court granting the application for relief from abuse filed by E. V. (E), on behalf of the plaintiff, V. V. (V), the minor daughter of the defendant and E, pursuant to General Statutes § 46b-15. On appeal, the defendant claims that the court lacked subject matter jurisdiction on the ground that E lacked standing to bring the application on behalf of V, as her next friend, because E's interests were adverse to those of V. We disagree and, accordingly, affirm the judgment of the trial court. The following undisputed facts and procedural history are relevant to our resolution of this appeal. E and the defendant were married in April, 2013, and have one minor child, V, born in December, 2013. On September 10, 2015, the Supreme Court of the state of New York, county of New York, dissolved the marriage between the defendant and E. In the dissolution decree, the court incorporated by reference the parties’ June 18, 2015 agreement, in which the parties agreed that they would have joint legal custody of V and that they would share parenting time with V in accordance with a detailed parenting time schedule. The defendant, V, and E subsequently relocated to the New Haven area. On May 7, 2019, E, pursuant to General Statutes § 46b-71 (a), registered the foreign dissolution judgment in the Superior Court in the judicial district of New Haven. Subsequently, the defendant and E each filed several motions in the Superior Court, seeking to modify their custody and visitation rights with respect to V. V. V. v. E. V. , Superior Court, judicial district of New Haven, Docket No. FA-19-4073157-S. In May, 2019, the court modified the dissolution judgment, awarded E sole physical custody of V, and ordered that the defendant's parenting time with V be limited to supervised visitation at E's discretion. V. V. v. E. V. , supra (May 21, 2019).
For clarity, we refer to the mother, V. V., as the defendant. We refer to the father, E, and the daughter, V, individually by their first initials in this opinion. Additionally, neither E nor V has participated in this appeal. Thus, we decide this appeal on the basis of the record, the defendant's appellate brief, and the defendant's oral argument.
General Statutes § 46b-15 provides in relevant part: "(a) Any family or household member, as defined in section 46b-38a, who is the victim of domestic violence, as defined in section 46b-1, by another family or household member may make an application to the Superior Court for relief under this section. ..."
In turn, General Statutes § 46b-1 (b) provides: "As used in this title, ‘domestic violence’ means: (1) A continuous threat of present physical pain or physical injury against a family or household member, as defined in section 46b-38a; (2) stalking, including, but not limited to, stalking as described in section 53a-181d, of such family or household member; (3) a pattern of threatening, including, but not limited to, a pattern of threatening as described in section 53a-62, of such family or household member or a third party that intimidates such family or household member; or (4) coercive control of such family or household member, which is a pattern of behavior that in purpose or effect unreasonably interferes with a person's free will and personal liberty. ‘Coercive control’ includes, but is not limited to, unreasonably engaging in any of the following:
"(A) Isolating the family or household member from friends, relatives or other sources of support;
"(B) Depriving the family or household member of basic necessities;
"(C) Controlling, regulating or monitoring the family or household member's movements, communications, daily behavior, finances, economic resources or access to services;
"(D) Compelling the family or household member by force, threat or intimidation, including, but not limited to, threats based on actual or suspected immigration status, to (i) engage in conduct from which such family or household member has a right to abstain, or (ii) abstain from conduct that such family or household member has a right to pursue;
"(E) Committing or threatening to commit cruelty to animals that intimidates the family or household member; or
"(F) Forced sex acts, or threats of a sexual nature, including, but not limited to, threatened acts of sexual conduct, threats based on a person's sexuality or threats to release sexual images."
The defendant's appellate brief additionally claims that (1) the court lacked personal jurisdiction, (2) the court's issuance of a domestic violence restraining order improperly modified the parties’ settlement agreement regarding custody that was incorporated into a foreign divorce decree that was registered in Connecticut, (3) the court violated the statutory bill of rights for psychiatric patients, General Statutes §§ 17a-540 through 17a-550, by permitting the defendant to have contact with V at joint therapeutic sessions with a psychologist, (4) the court's issuance of a restraining order infringed on the defendant's civil liberties as the parent of V, (5) the court improperly denied her motion to reargue and set aside the restraining order, and (6) the court manifested bias and prejudice toward her. We carefully have considered each of the defendant's six additional claims in light of the record before us and conclude that they are unfounded and do not merit substantive discussion. See, e.g., McCullough v. Rocky Hill , 198 Conn. App. 703, 705 n.1, 234 A.3d 1049 (summarily disposing of unfounded claims), cert. denied, 335 Conn. 985, 242 A.3d 480 (2020).
We take judicial notice of the court files in two prior actions between the parties; V. V. v. E. V. , Superior Court, judicial district of New Haven, Docket No. FA-19-4073157-S; V. V. v. V. V. , Superior Court, judicial district of New Haven, Docket No. FA-20-5049453-S; only to the extent that the contents of those files are not borne out by the record of the present appeal. See Plainville v. Almost Home Animal Rescue & Shelter, Inc. , 182 Conn. App. 55, 60 n.3, 187 A.3d 1174 (2018) (appellate court may take judicial notice of court files in other actions between same parties).
General Statutes § 46b-71 (a) provides: "Any party to an action in which a foreign matrimonial judgment has been rendered, shall file, with a certified copy of the foreign matrimonial judgment, in the court in this state in which enforcement of such judgment is sought, a certification that such judgment is final, has not been modified, altered, amended, set aside or vacated and that the enforcement of such judgment has not been stayed or suspended, and such certificate shall set forth the full name and last-known address of the other party to such judgment and the name and address of the court in the foreign state which rendered such judgment."
On December 11, 2020, E, on behalf of V, filed a prior application for relief from abuse against the defendant in a proceeding in the Superior Court. V. V. v. V. V. , Superior Court, judicial district of New Haven, Docket No. FA-20-5049453-S. In support of this application, E averred that the defendant, who suffers from bipolar disorder with psychosis, had attempted to abduct V from her home and her private school despite the court order providing the defendant parenting time with V only when supervised and at E's discretion. On December 23, 2020, the defendant filed a motion to dismiss this application on the ground, inter alia, that E lacked standing to bring the action on behalf of V, which was denied summarily by the court on the same date. Also on December 23, 2020, the court, after a hearing, granted the application for relief from abuse and issued a restraining order, set to expire on December 23, 2021, requiring the defendant: to surrender or transfer all firearms and ammunition; not to assault, threaten, abuse, harass, follow, interfere with, or stalk V; to stay away from the home of V and wherever V shall reside; not to contact V in any manner; and to stay 100 yards away from V. On July 9, 2021, in Docket No. FA-19-4073157-S, the court modified the December 23, 2020 restraining order to allow the defendant to participate in therapeutic visitation sessions with V and a therapist, Kacian Fabish. On that same date, the court also appointed, pursuant to the parties’ agreement, Attorney Corrine Boni-Vendola to serve as guardian ad litem for V.
The defendant filed two appeals from the judgments rendered in this prior restraining order action, and this court dismissed those appeals. See V. V . v. V. V. , Connecticut Appellate Court, Docket No. AC 44583 (appeal dismissed April 20, 2021) (failure to file required appellate documents); see also V. V. v. V. V. , 215 Conn. App. 737, 741, 283 A.3d 1045 (2022) (appeal dismissed for lack of subject matter jurisdiction).
On January 27, 2022, E, on behalf of V, filed the application for relief from abuse against the defendant that is the subject of this appeal, together with a personal affidavit of supporting facts. In the application, E contended that V had been subjected to a continuous threat of present physical pain or physical injury, stalking, a pattern of threatening, and/or coercive control by the defendant. The application requested that the court issue a restraining order mandating that the defendant: not assault, threaten, abuse, harass, follow, interfere with, or stalk V; stay away from V's home or wherever she shall reside; not contact V in any manner, including by written, electronic or telephonic means; not contact V's home, workplace, or other persons with whom the contact would be likely to cause annoyance or alarm to V; and stay 100 yards away from V. The application further requested that the court issue the restraining order ex parte on the ground that E believed there was an immediate and present physical danger to V.
In E's affidavit of facts submitted in support of the application for relief from abuse, he averred that, following the entry of the December 23, 2020 order of protection, V no longer had nightmares and was no longer afraid. E further averred that, after the expiration of the December 23, 2020 restraining order, the defendant began appearing, uninvited, at V's home, at the private school she attended, and at her gymnastics classes, and that the defendant's "behavior ha[d] been escalating." E concluded his affidavit by averring that V "was thriving. Now that [the defendant] is stalking her, she is anxious when leaving school or going to gymnastic[s] class. She has a fear that [the defendant] is trying to take her."
On January 27, 2022, the court issued an ex parte restraining order against the defendant and scheduled a hearing for February 4, 2022. On February 2, 2022, the defendant filed a motion to dismiss the application for a domestic violence restraining order on the ground, inter alia, that the court lacked subject matter jurisdiction. In her memorandum of law in support of the motion to dismiss, the defendant argued, in part, that E lacked standing to bring the application for a restraining order on behalf of V. The defendant's motion to dismiss was not adjudicated.
We note that "[o]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented. ... The court must fully resolve it before proceeding further with the case ." (Emphasis in original; internal quotation marks omitted.) Ajadi v. Commissioner of Correction , 280 Conn. 514, 535, 911 A.2d 712 (2006) ; but see Conboy v. State , 292 Conn. 642, 653 n.16, 974 A.2d 669 (2009) ("[w]hen the jurisdictional facts are intertwined with the merits of the case, the court may in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred"). Although the trial court did not rule on the defendant's motion to dismiss, this fact does not impact the resolution of the present appeal because "[t]he subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal ...." (Internal quotation marks omitted.) Wolfork v. Yale Medical Group , 335 Conn. 448, 459, 239 A.3d 272 (2020).
On February 4, 2022, the court held a hearing on the application for a restraining order. The court heard testimony at the hearing from E, Boni-Vendola, and the defendant. E testified that V had been doing much better while the prior restraining order was in effect, for then "[e]verything was very calm" and there were "no issues" between V and the defendant. E further testified, however, that after the expiration of the prior restraining order, the defendant stopped attending therapeutic visitation with V and Fabish and began appearing, uninvited and unannounced, in places and at events where V was present. Specifically, E testified regarding a series of incidents that occurred between January 5 and 26, 2022, in which the defendant came to V's school when E was picking her up, followed E and V home from school, repeatedly rang their home doorbell, and walked her dog back and forth in front of their home for more than one hour. E also testified that the defendant attended and recorded V's gymnastics classes and attempted to take V from her school. E testified that these incidents caused V to be terrified of the defendant, to become very unhappy, and to suffer emotional distress. In addition, he testified that the defendant's disruptive conduct near V's school threatened V's continued enrollment in the school.
Boni-Vendola's testimony at the hearing corroborated E's description of the defendant's conduct at or near V's school. Boni-Vendola also testified that she met with the defendant before her behavior escalated and expressed her concerns that the defendant was not in treatment and that she had ceased her therapeutic visitation. She then testified that it was in the best interests of V for the restraining order to be issued, and she recommended that an exception to the restraining order be crafted to permit the defendant to see V during therapeutic visits with Fabish.
The defendant in her testimony disputed that she had engaged in most of the conduct that served as the basis for the restraining order, and, alternatively, she testified that her actions on several of those occasions did not negatively impact the psychological well-being of V. The defendant further testified that it was her understanding that she was permitted to be within 100 yards of V because the prior restraining order had expired. When asked whether E had given her permission to have parenting time with V on those occasions, as required by the current custody and visitation order, the defendant stated that she misunderstood the requirements of the court's custody and visitation order.
On February 4, 2022, the court granted the application for relief from abuse and issued a restraining order protecting V from the defendant. The court stated on the record at the hearing that it found the testimony of E and Boni-Vendola to be credible, but it did not credit the testimony of the defendant. The court found, inter alia, that "there have been six incidents since the lapse of the last restraining order. So, that would be six incidents from December of 2021 to today in which the [defendant] has appeared at [V's] school, at [E's] home, and at [V's] events. All of those are events in which the [defendant] was not expected and not invited, and [E] testified credibly that those events for which [V] was present caused [V] a great deal of distress that she is scared of being taken by [the defendant], that she finds [the defendant's] presence to be unnerving and unpredictable. That [V], as a result of the [defendant's] unexpected appearance at these—on these six occasions, has sort of had some backsliding in terms of her mental health. That she'd become more anxious; that she has become more fearful." The court also found that E "has demonstrated in his testimony and the guardian [ad litem] has also recommended that he is a perfectly capable custodian, that he includes the [defendant] when it's appropriate, that he excludes the [defendant] when it's appropriate, and under the criteria of [§] 46b-15, he does meet the requirements to have—be the sole legal custodian for the period of time while the restraining order is in place." Consequently, the court concluded that the credible evidence established that, pursuant to § 46b-15, V would be at risk of psychological harm if the requested restraining order were not issued. Also on February 4, 2022, the court issued a written order outlining the terms and conditions of the restraining order. The order required the defendant: to surrender or transfer all firearms and ammunition; not to assault, threaten, abuse, harass, follow, interfere with, or stalk V; to stay away from the home of V and wherever V shall reside; not to contact V in any manner, including by written, electronic or telephonic means; not to contact V's home, workplace, or any other persons with whom the contact would likely cause annoyance or alarm to V; and to stay 100 yards away from V. As an additional term and condition, the court ordered that the defendant "at all times must stay 100 yards away from [V's] school, the home of [V] and the locations where [V] participates in swim and gymnastics. The only exception is court-ordered therapeutic access with Kacian Fabish, MS LPC. [E] is granted sole, physical and legal custody of [V]." The court set the restraining order to expire one year later, on February 4, 2023. This appeal followed.
The court, sua sponte, issued a corrected restraining order, which also is dated February 4, 2022. The only substantive distinction between the original and corrected orders is the addition in the corrected order of the provision granting E sole physical and legal custody of V.
Despite the expiration of the restraining order on February 4, 2023, the defendant's appeal is not moot. See, e.g., L. D. v. G. T. , 210 Conn. App. 864, 869 n.4, 271 A.3d 674 (2022) (expiration of domestic violence restraining order issued pursuant to § 46b-15 does not render appeal from that order moot due to adverse collateral consequences). Additionally, we note that E, on January 17, 2023, filed two motions to extend the restraining order that is the subject of this appeal. The trial court has not acted on these motions.
On appeal, the defendant claims that the court lacked subject matter jurisdiction on the ground that E lacked standing to bring the application for a domestic violence restraining order on behalf of V, as her next friend, because E's interests were adverse to those of V. We disagree. We begin with the standard of review and relevant legal principles. "The issue of standing implicates a court's subject matter jurisdiction and is subject to plenary review." Channing Real Estate, LLC v. Gates , 326 Conn. 123, 137, 161 A.3d 1227 (2017). "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. ... When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue ...." (Internal quotation marks omitted.) Rodriguez v. Kaiaffa , LLC , 337 Conn. 248, 274, 253 A.3d 13 (2020). "Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) Wolfork v. Yale Medical Group , 335 Conn. 448, 471, 239 A.3d 272 (2020). "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Jenzack Partners, LLC v. Stoneridge Associates, LLC , 334 Conn. 374, 382, 222 A.3d 950 (2020).
Although the defendant's principal appellate brief is not a model of clarity, we pause to define the contours of the defendant's standing claim on appeal. The defendant does not contest the general proposition that the parent of a minor child can bring an application on behalf of the minor child, as next friend, seeking a domestic violence restraining order against another parent. See, e.g., Carrubba v. Moskowitz , 274 Conn. 533, 552, 877 A.2d 773 (2005) ("[u]nder normal circumstances," parents of minor child have standing as next friends of minor child "because they are presumed to act in the best interests of the minor child"); see also L. L. v. M. B ., 216 Conn. App. 731, 733, 286 A.3d 489 (2022) (parent commenced application for domestic violence restraining order on behalf of child against other parent); L. D. v. G. T ., 210 Conn. App. 864, 866, 271 A.3d 674 (2022) (same); D. S. v. R. S ., 199 Conn. App. 11, 13, 234 A.3d 1150 (2020) (same). The defendant also does not argue that, because Boni-Vendola was appointed as the guardian ad litem for V, no "exceptional circumstances" existed to warrant the bringing of the action by E. See, e.g., Perry v. Perry , 312 Conn. 600, 611, 95 A.3d 500 (2014) (outlining certain exceptional circumstances in which action may be brought on behalf of child by next friend notwithstanding existence of guardian appointed to protect interests of that child).
"A next friend is a person who appears in a lawsuit to act for the benefit of ... [a] minor plaintiff .... It is well established that a child may bring a civil action only by a guardian or next friend, whose responsibility it is to ensure that the interests of the ward are well represented." (Internal quotation marks omitted.) Harris v. Neale , 197 Conn. App. 147, 149 n.1, 231 A.3d 357 (2020). "Next friend standing essentially allows a third party to advance a claim in court on behalf of another when the party in interest is unable to do so on his or her own. ... The ‘next friend’ does not himself become a party to the action in which he participates, but simply pursues the action on behalf of the real party in interest." (Citations omitted; internal quotation marks omitted.) Nonhuman Rights Project, Inc. v. R.W. Commerford & Sons, Inc. , 192 Conn. App. 36, 42, 216 A.3d 839, cert. denied, 333 Conn. 920, 217 A.3d 635 (2019). "[T]he proper test for determining whether a person is the proper party to bring an action on behalf of a minor child as a guardian or next friend is whether that person's interests are adverse to those of the child ...." (Emphasis added; internal quotation marks omitted.) Carrubba v. Moskowitz , 274 Conn. 533, 550, 877 A.2d 773 (2005). Applying these principles, we conclude that E had standing to pursue a restraining order on behalf of V, as her next friend, because E's interests were not adverse to those of V. It is evident that the interests of E and V were aligned for two reasons. Primarily, at the time that E filed the present application for relief from abuse on behalf of V, he had sole physical custody of V and had been granted the discretion to determine whether or not to permit the defendant to have supervised visitation with her. The postdissolution court's award of sole physical custody and visitation discretion to E necessarily resulted from a determination that it was in the best interest of V that E, her father, be responsible for her. See generally J. Y. v. M. R. , 215 Conn. App. 648, 657–59, 283 A.3d 520 (2022) (court is required to consider best interest of child when making or modifying any order regarding custody, care, education, visitation, and support of child). Second, the court in the present case specifically credited the testimony of Boni-Vendola, V's guardian ad litem, that it was in the best interest of V that the restraining order be issued and that E was a "perfectly capable custodian" for V. As stated previously, Boni-Vendola had been appointed by the postdissolution court to be the guardian ad litem for V on the basis of the agreement of the parties. Boni-Vendola's testimony at the restraining order hearing was made on behalf of V because "[i]t is well established that the role of the guardian ad litem is to speak on behalf of the best interest of the child." In re Tayquon H ., 76 Conn. App. 693, 704, 821 A.2d 796 (2003).
In support of her standing claim, the defendant relies only on Orsi v. Senatore , 31 Conn. App. 400, 626 A.2d 750 (1993), rev'd, 230 Conn. 459, 645 A.2d 986 (1994). This court's judgment in Orsi v. Senatore , supra, 31 Conn. App. 400, 626 A.2d 750, has no precedential value because it was reversed by our Supreme Court in Orsi v. Senatore , 230 Conn. 459, 645 A.2d 986 (1994). See Harris v. Commissioner of Correction , 271 Conn. 808, 827–28, 860 A.2d 715 (2004) (Supreme Court's reversal of Appellate Court judgment deprives Appellate Court judgment of any precedential value). For that reason, we do not apply Orsi v. Senatore , supra, 31 Conn. App. 400, 626 A.2d 750.
It is not made clear in the defendant's appellate brief what is the specific basis for her contention that E's interests were adverse to those of V. The defendant, however, contends that E "brought this restraining order action to advance his nonjusticiable interests that are adverse to [V's] interests and meant to subject [V] to his maltreatment ‘continuously’ ... and in retaliation against [the defendant] because she filed a Title IX complaint against [E] at ... Yale University." (Citation omitted.) The defendant offers no support for her contention that E continuously mistreated V. Conversely, her argument contradicts the evidence that the court credited at the hearing.
In sum, indulging every presumption in favor of jurisdiction, we conclude that E had standing to apply for a domestic violence restraining order against the defendant on V's behalf, while acting in the capacity of her next friend. As V's father, and the person to whom the court previously had granted sole physical custody with respect to her, E's interests were not only not adverse to those of V but in fact were well aligned with those interests, as confirmed by her guardian ad litem, who opined at the hearing that the issuance of the restraining order was in the best interest of V. Therefore, E had standing to apply for the order here challenged as the next friend of V.
The judgment is affirmed.
In this opinion the other judges concurred.