S. S. v. D. M.

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S. S. v. D. M.

S. S. v. D. M.*
(AC 47010)
Bright, C. J., and Moll and Flynn, Js.

Syllabus

The defendant, a former police officer, appealed from the judgment of the
trial court granting an application for a civil protective order for the plaintiff,
a police chief, filed pursuant to statute (§ 46b-16a (a)) on the basis of stalking.
The defendant claimed, inter alia, that the trial court abused its discretion
in issuing the order of civil protection, as modified, because the trial court
did not make the requisite factual findings. Held:

The trial court abused its discretion in issuing the modified order of civil
protection without having made the necessary factual findings that there
were reasonable grounds to believe that the defendant both had stalked the
plaintiff and would have continued to stalk the plaintiff.

Argued September 5—officially released October 8, 2024

Procedural History

Application for a civil protection order, brought to
the Superior Court in the judicial district of Ansonia-
Milford, where the court, M. Moore, J., issued an ex
parte civil protection order; thereafter, the court, Hon.
Arthur A. Hiller, judge trial referee, granted the applica-
tion and issued an order of civil protection, from which
the defendant appealed to this court; subsequently, the
court, Hon. Arthur A. Hiller, judge trial referee, granted
the defendant’s motion to modify the order upon agree-
ment of the parties, and issued a modified order of civil
protection, and the defendant filed an amended appeal.
Reversed; order vacated.
* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as
amended by the Violence Against Women Act Reauthorization Act of 2022,
Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to identify any person
protected or sought to be protected under a protection order, protective
order, or a restraining order that was issued or applied for, or others through
whom that person’s identity may be ascertained.
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S. S. v. D. M.

Todd R. Michaelis, with whom, on the brief, was
Jeffrey M. Beck, for the appellant (defendant).
Thomas W. Bucci, for the appellee (plaintiff).

Opinion

MOLL, J. The defendant, D. M., appeals from the
judgment of the trial court granting the application for
an order of civil protection for the plaintiff, S. S., pursu-
ant to General Statutes § 46b-16a1 on the basis of stalk-
ing. On appeal, the defendant claims that the court
improperly continued in effect and further modified an
order of civil protection for the benefit of the plaintiff
without making certain requisite factual findings. We
agree and, accordingly, reverse the judgment of the
trial court.
The following procedural history is relevant to our
resolution of this appeal. On September 25, 2023, the
plaintiff filed an application seeking an order of civil
protection against the defendant on the ground that the
defendant had stalked him (application). In the support-
ing affidavit accompanying the application, the plaintiff
averred that (1) he was the chief of police for a munici-
pality and an adjunct professor at a community college,
and (2) the defendant, whose employment as a police
officer for the same municipality had been terminated
in July, 2020, had stalked him at the community college
1
General Statutes § 46b-16a (a) provides: ‘‘Any person who has been the
victim of sexual abuse, sexual assault or stalking may make an application
to the Superior Court for relief under this section, provided such person
has not obtained any other court order of protection arising out of such
abuse, assault or stalking and does not qualify to seek relief under section
46b-15. As used in this section, ‘stalking’ means two or more wilful acts,
performed in a threatening, predatory or disturbing manner of: Harassing,
following, lying in wait for, surveilling, monitoring or sending unwanted
gifts or messages to another person directly, indirectly or through a third
person, by any method, device or other means, that causes such person to
reasonably fear for his or her physical safety.’’
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S. S. v. D. M.

and at his residence. On September 25, 2023, the trial
2

court, M. Moore, J., issued an ex parte civil protection
order prohibiting the defendant, inter alia, from stalk-
ing, contacting, or coming within 100 yards of the plain-
tiff. The court further ordered that a hearing on the
application be held on October 6, 2023.
At the October 6, 2023 hearing on the application,
the court, Hon. Arthur A. Hiller, judge trial referee,
heard testimony from both parties. The plaintiff testi-
fied that the defendant (1) had driven by his house on
multiple occasions, during which times the defendant
videotaped and photographed him, and (2) had followed
him on September 21, 2023, to the community college
where he taught classes. The defendant testified that
he had never followed the plaintiff, either intentionally
or accidentally, or driven to the plaintiff’s residence
and videotaped the plaintiff’s vehicle parked at the
home, but he confirmed that he had visited the commu-
nity college (1) on September 14, 2023, when the plain-
tiff was not present, and (2) again on September 21,
2023, under the belief that the plaintiff would not be
present. According to the defendant’s testimony, he (1)
believed that the plaintiff was directing other police
officers to teach his classes for him at the community
college and (2) traveled to the community college on
the aforementioned dates in order to document the
plaintiff’s absences.
At the conclusion of the October 6, 2023 hearing, the
court issued an oral decision granting the application.
The court stated: ‘‘The court finds that there [are] suffi-
cient grounds for the continuation of this protective
order. The evidence is sufficient to cause concern for
The plaintiff further averred that (1) he previously had observed the
2

defendant stalking him while he was on duty performing traffic detail in
2020, and (2) the defendant intentionally had driven by his past residences
and watched him.
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S. S. v. D. M.

the court. And I’m sure to cause concern for the [plain-
tiff] as to potential harassment, potential—excuse me
for a second, harassment, [lying in wait for], surveilling.
All the items that are grounds for a civil protection
order. There’s sufficient proof for the court to continue
this order.’’ On October 23, 2023, the court accepted a
stipulation executed by the parties to modify the civil
protection order, granted a motion filed by the defen-
dant to modify the order, and issued a modified order
of civil protection. The modified order limited the scope
of the original order’s stay away provision by permitting
the defendant to come within 100 yards of the plaintiff
during other ongoing legal proceedings between the
parties.3 This amended appeal followed.4
We begin by setting forth the applicable standard of
review and legal principles that are relevant to our
resolution of the defendant’s claim. ‘‘We apply the same
standard of review to civil protection orders under
§ 46b-16a as we apply to civil restraining orders under
General Statutes § 46b-15. Thus, we 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 pre-
sumption 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
3
The modified order of civil protection is set to expire on October 6, 2024.
4
On October 18, 2023, the defendant filed this appeal from the October
6, 2023 order granting the application. On December 21, 2023, the defendant
amended the appeal to encompass the October 23, 2023 modified civil protec-
tion order.
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S. S. v. D. M.

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 applica-
tion 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.) S. B-R. v. J. D., 208 Conn.
App. 342, 346–47, 266 A.3d 148 (2021).
Section 46b-16a (a) provides in relevant part: ‘‘Any
person who has been the victim of . . . stalking may
make an application to the Superior Court for relief
under this section, provided such person has not
obtained any other court order of protection arising
out of such . . . stalking and does not qualify to seek
relief under section 46b-15. As used in this section,
‘stalking’ means two or more wilful acts, performed
in a threatening, predatory or disturbing manner of:
Harassing, following, lying in wait for, surveilling, moni-
toring or sending unwanted gifts or messages to another
person directly, indirectly or through a third person, by
any method, device or other means, that causes such
person to reasonably fear for his or her physical safety.’’
Subsection (b) of § 46b-16a provides in relevant part:
‘‘If the court finds that there are reasonable grounds to
believe that the respondent has committed acts consti-
tuting grounds for issuance of an order under this sec-
tion and will continue to commit such acts, or acts
designed to intimidate or retaliate against the applicant,
the court, in its discretion, may make such orders as
it deems appropriate for the protection of the appli-
cant. . . .’’
Importantly, ‘‘an applicant for a civil protection order
on the basis of stalking pursuant to § 46b-16a must
prove only that there are reasonable grounds to believe
that every element is met and that such conduct will
continue.’’ (Internal quotation marks omitted.) Kayla
M. v. Greene, 163 Conn. App. 493, 506, 136 A.3d 1 (2016);
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S. S. v. D. M.

see General Statutes § 46b-16a (b). ‘‘A finding of reason-
able grounds to believe stalking occurred is equivalent
to a finding of probable cause that stalking occurred.
. . . While probable cause requires more than mere
suspicion . . . the line between mere suspicion and
probable cause necessarily must be drawn by an act of
judgment formed in light of the particular situation and
with account taken of all the circumstances. . . . The
existence of probable cause does not turn on whether
the defendant could have been convicted on the same
available evidence. . . . In dealing with probable cause
. . . as the very name implies, we deal with probabili-
ties.’’ (Citation omitted; internal quotation marks omit-
ted.) C. A. v. G. L., 201 Conn. App. 734, 740–41, 243
A.3d 807 (2020).
‘‘In order for a court to issue an order of civil protec-
tion under § 46b-16a on the basis of stalking, it must
find that there are reasonable grounds to believe that
the defendant both stalked the plaintiff and will con-
tinue to commit such acts. . . . If a court issues an
order without a proper finding or without sufficient
evidence to support such a finding, as to either stalking
or the continuation of such acts, it will constitute an
abuse of discretion.’’ (Citations omitted.) S. B-R. v. J.
D., supra, 208 Conn. App. 347–48.
With these legal principles in mind, we turn to the
merits of the defendant’s claim on appeal. The defen-
dant argues that the court abused its discretion in issu-
ing the order of civil protection, as modified, because
the court did not make the requisite factual findings
that there were reasonable grounds to believe that the
defendant both stalked the plaintiff and will continue
to commit such acts. In connection with this claim,
the defendant further asserts that the court improperly
failed to make a finding as to the reasonable fear prong
of stalking as defined in § 46b-16a (a). We agree with
the defendant that the court’s failure to make express
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S. S. v. D. M.

findings that reasonable grounds existed to believe that
the defendant both had stalked the plaintiff and will
continue to do so constitutes an abuse of the court’s
discretion.5
The court, in its ruling from the bench, stated that
there were sufficient grounds for the continuation of
the protective order, specifically that the evidence
‘‘cause[d] concern for the court . . . [a]nd . . .
cause[d] concern for the [plaintiff] as to potential
harassment . . . [lying in wait for], surveilling.’’
Although we remain mindful that ‘‘we allow every rea-
sonable presumption in favor of the correctness of [the
court’s] action’’; (internal quotation marks omitted) S.
B-R. v. J. D., supra, 208 Conn. App. 347; we cannot
reasonably construe the court’s statements to consti-
tute factual findings that there were reasonable grounds
to believe that the defendant both had stalked the plain-
tiff and would continue to commit such acts. The court
did not make any such findings expressly, and we do
not interpret the court’s statements that the court and
the plaintiff were ‘‘concern[ed]’’ as to ‘‘potential harass-
ment . . . [lying in wait for], surveilling’’; (emphasis
added); as being adequate to comprise any such find-
ings. The court’s use of the word ‘‘potential’’ implies
only the possibility that stalking might occur in the
future, not that stalking will continue. Indeed, the lack
of subordinate findings by the court drawn from the
evidence that would support these necessary findings
further bolsters our conclusion. Cf., e.g., Stacy B. v.
Robert S., 165 Conn. App. 374, 377–79, 140 A.3d 1004
(2016) (in granting plaintiff’s application for protective
order under General Statutes (Rev. to 2015) § 46b-16a
5
The defendant also argues that there was insufficient evidence to estab-
lish reasonable grounds to believe that the defendant both had stalked the
plaintiff, including evidence to support the reasonable fear prong of stalking
as statutorily defined, and would continue to stalk the plaintiff. Because
the defendant’s claim regarding the court’s failure to make the requisite
factual findings is dispositive, we need not reach his evidentiary claim.
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on basis of stalking, trial court noted numerous
instances where defendant made disparaging and
defamatory statements about plaintiff to others, includ-
ing on online publication, to school board of educa-
tional institution that plaintiff’s son attended, and to
plaintiff’s employer).
In addition, in order to find that the defendant had
stalked the plaintiff pursuant to § 46b-16a (a), it was
necessary for the court to make an attendant finding
that there were reasonable grounds to believe that the
plaintiff reasonably feared for his safety as a result of
the defendant’s actions. ‘‘The standard to be applied in
determining the reasonableness of the victim’s fear in
the context of the crime of stalking is a subjective-
objective one. . . . As to the subjective test, the situa-
tion and the facts must be evaluated from the perspec-
tive of the victim, i.e., did [he] in fact fear for [his]
physical safety. . . . If so, that fear must be objectively
reasonable, i.e., a reasonable person under the existing
circumstances would fear for his or her personal
safety.’’ (Internal quotation marks omitted.) S. B-R. v.
J. D., supra, 208 Conn. App. 348; see also L. H.-S. v. N.
B., 341 Conn. 483, 494, 267 A.3d 178 (2021) (‘‘under our
tools of statutory construction, § 46b-16a unambigu-
ously creates a subjective-objective standard for pur-
poses of assessing fear’’). The court’s decision is wholly
devoid of any findings vis-à-vis the reasonable fear
prong, as the court’s statements regarding the plaintiff
having ‘‘concern’’ as to ‘‘potential harassment . . .
[lying in wait for], surveilling’’ are insufficient to satisfy
this prong. The lack of subordinate findings by the court
drawn from the evidence concerning the reasonable
fear prong further supports our conclusion. Cf., e.g., C.
A. v. G. L., supra, 201 Conn. App. 736–37 (in granting
plaintiff’s application for civil protection order under
§ 46b-16a on basis of stalking, trial court found that
parties had toxic relationship and were locked in
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S. S. v. D. M.

adversarial litigation, defendant frequently had left mes-
sages on plaintiff’s door, and defendant’s anger was
‘‘ ‘escalating well beyond the litigation’ ’’); Stacy B. v.
Robert S., supra, 165 Conn. App. 377 (‘‘[t]he court high-
lighted a number of incidents that would cause any
reasonable person under the same circumstances to
fear for his personal safety and to fear that his employ-
ment, business and career [were] thereby threatened’’
(internal quotation marks omitted)).
In sum, we conclude that the court abused its discre-
tion in issuing the order of civil protection, as modified,
without making the necessary factual findings that there
were reasonable grounds to believe that the defendant
both had stalked and will continue to stalk the plaintiff.6
See S. B-R. v. J. D., supra, 208 Conn. App. 347–48.
Accordingly, the order of civil protection, as modified,
cannot stand.
The judgment is reversed and the case is remanded
with direction to vacate the order of civil protection,
as modified.
In this opinion the other judges concurred.

6
Relying on Practice Book § 61-10, the plaintiff argues that the defendant’s
claim regarding the court’s failure to make the requisite factual findings is
untenable because the defendant failed to file a motion for articulation of
the court’s decision pursuant to Practice Book § 66-5. See Practice Book
§ 61-10 (a) (‘‘[i]t is the responsibility of the appellant to provide an adequate
record for review’’). We are not persuaded. As this court has instructed,
prior to issuing an order of civil protection under § 46b-16a on the basis of
stalking, a trial court must make factual findings ‘‘that there are reasonable
grounds to believe that the defendant both stalked the plaintiff and will
continue to commit such acts’’; S. B-R. v. J. D., supra, 208 Conn. App. 347;
and the failure to do so ‘‘will constitute an abuse of discretion.’’ (Emphasis
added.) Id., 348. Here, there was no ambiguity or deficiency in the court’s
decision to be clarified; rather, the court’s decision reflects that it committed
error by failing to make the factual findings necessary to support the order
of civil protection, as modified.