Kingsley Hubby v. Frank B. Hubby (2012)

MEMORANDUM OF DECISION REGARDING RESTRAINING ORDER

A review of the record reveals that Mrs. Kingsley Hubby, age 103, acting through her co-conservators, Alison Hubby Hoversten (her daughter) and Nicholas Hubby (her son), was granted an ex-parte restraining order against her son, Dr. Frank Benedict Hubby, on March 2, 2012 pursuant to Connecticut General Statutes § 46b–15.   The parties appeared together with counsel on March 14 and March 16, 2012 for a lengthy hearing.

The court has fully considered the criteria of General Statutes § 46b–15 as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and arguments of counsel in reaching the decisions reflected in the orders that issue in this decision.

The court finds proven by a fair preponderance of the evidence the following facts:

1. Mrs. Kingsley Hubby is 103 years old and resides in her spacious waterfront home overlooking Long Island Sound located at 249 Old Black Point Road, Niantic, Connecticut.

2. The respondent, Dr. Frank Benedict Hubby, resides in and practices internal medicine in Savannah, Georgia.   He visits with his mother approximately two times per year.

3. Allison Hubby Hoversten is the daughter and was appointed co-conservator of Mrs. Kingsley Hubby on February 29, 2012 and resides in Denver, Colorado.   She visits her mother approximately two times per year but maintains constant contact with her caregivers by telephone and e-mail.

4. Nicolas Hubby is the son and was appointed co-conservator of Mrs. Kingsley Hubby on February 29, 2012 and resides in western Massachusetts.   He is confined to a wheelchair and visits with his mother approximately two times per year but maintains constant contact with her caregivers by telephone and e-mail.   He holds a health care proxy previously executed by his mother and at one time had been designated her attorney in fact by virtue of a power of attorney.

5. George Gallup, Mrs. Kingsley Hubby's son-in-law, was her chosen conservator from April 2007 until his death in 2011.   From that time until the present, there was no conservator.

6. Allison Hubby Hoversten and Nicholas Hubby are estranged from their brother, Dr. Frank Benedict Hubby, who had unsuccessfully attempted in the past to become the conservator of the person of their mother.

7. The dispute between the adult children, surprisingly, does not involve money;  it appears that the disposition of the estate has long been established.   The family disagrees about the care which their mother should enjoy in her final days.

8. Allison Hubby Hoversten and Nicholas Hubby have had de facto control over the care of their mother with Nicholas Hubby acting as the trustee of her estate.   They have arranged for a loving, compassionate and qualified team of nonmedical caregivers who attend to her needs 24 hours per day, seven days per week.   It is their belief that their mother should spend her last days in the waterfront home which she knows and loves.

9. Dr. Frank Benedict Hubby believes that the mother is “virtually a prisoner” in her home and that her care is substandard.   He testified that her bed is of poor quality, she has been found soiled and wet and that some parts of the home's exterior have fallen into disrepair.   He advocates that she be placed in a high quality nursing home or assisted living facility in the Savannah, Georgia area where he can visit her frequently and oversee her care.

10. The court finds that Mrs. Kingsley Hubby's care has been excellent, and that the caregivers are skilled, caring and attentive.

11. Dr. David Thompson, Mrs. Kingsley Hubby's personal physician for approximately 30 years and neighbor, testified that he attends to her medical needs and performs routine physicals, in her home approximately two times per year.   He testified credibly that he thought that she was receiving excellent care from her caregivers, that her health is good, that she is happy and well situated in her home and is frequently visited there by friends.   He believes that the adult children, Allison and Nicholas, have attended to her needs appropriately.   He testified that his patient was physically and emotionally strained and stressed by the events leading to her being taken out of and returned to the state of Connecticut as hereinafter chronicled.

12. On February 25, 2012, Mrs. Kingsley Hubby had no conservator and there existed no valid power of attorney.

13. Creating a ruse that he wanted to take his mother out to breakfast, and without consulting with his siblings or her attending physician, Dr. Frank Benedict Hubby, accompanied by three others, transported his mother to Savannah, Georgia;  he described the event as a “rescue” while his siblings described it as a “kidnapping.”   No court orders were defied by this action.   Dr. Frank Benedict Hubby had rented a 35–foot medical recreational vehicle with two drivers and a nurse in attendance.   The vehicle was equipped with all of her prescription medications, food, beverages and sleeping accommodations for his mother.   Upon arrival in Savannah, Georgia, he admitted her into a hospital with which he is professionally affiliated and had her examined by doctors and nurses.   It was his intention to obtain a conservatorship for his mother in Savannah, Georgia and then have her admitted into an assisted living facility close to his residence.

14. Upon learning of these events, the other two siblings dispatched two of her caregivers to the hospital in Savannah, Georgia.   They were able to convince the hospital staff that they possessed the legal authority over Mrs. Kingsley Hubby and she was discharged to their care, against medical advice.   The caregivers transferred Mrs. Kingsley Hubby by taxi to a local hotel for a few hours of sleep before transporting her to the airport for a flight to Providence, Rhode Island, returning her to her home.

15. Dr. David Thompson testified that the event was physically and mentally traumatizing to his patient but he could not specify which part of the trip caused that trauma.

16. On February 29, 2012, Nicholas Hubby and Allison Hubby Hoversten were appointed co-conservators of their mother in the Niantic Regional Probate District Court.

17. On March 6, 2012, the Niantic Regional Probate District Court ordered that Mrs. Kingsley Hubby shall not be removed from her home without probate court approval.

18. Dr. Frank Benedict Hubby testified credibly that his sole motivation was to provide comfort and care for his mother, that he did not believe that she was receiving adequate care from her caregivers and that he would respect the rule of law and not attempt to repeat his actions without permission of the court.

19. Whether or not Mrs. Kingsley Hubby should spend the remainder of her life in her home with her caregivers or in an assisted living facility is not the question presented before the court.   The question presented before the court is whether or not the respondent, Frank Benedict Hubby, poses a continuous threat of present physical pain or physical injury to his mother and that a restraining order is necessary for her protection.

LEGAL DISCUSSION

General Statutes § 46b–15(a) provides, “[a]ny family or household member as defined in section 46b–38a who has been subjected to a continuous threat of present physical pain or physical injury by another family or household member ․ may make an application to the Superior Court for relief under this section.”

General Statutes § 46b–15(b) provides, in relevant part, that “[t]he court, in its discretion, may make such orders as it deems appropriate for the protection of the applicant and such dependent children or other persons as the court sees fit.”   Pursuant to statutory authority of General Statutes § 46b–15, the trial court has the “inherent equitable powers in family matters to enter orders protecting the welfare of the parties.”  LaCroix v. LaCroix, 189 Conn. 685, 689, 457 A.2d 1076 (1983).

Nonetheless, there are consequences to the respondent resulting from the issuance of a restraining order.   Our courts have recognized and have articulated the “collateral consequences” doctrine, which requires the applicant to prove the need for a restraining order.  Putnam v. Kennedy, 279 Conn. 162, 167, 900 A.2d 1256 (2006);  State v. McElveen, 261 Conn. 198, 205, 802 A.2d 74, (2002).

The plain language of General Statutes § 46b–15 clearly requires a continuous threat of present physical pain or physical injury before a court can grant a domestic violence restraining order.   In support of the statutory interpretation, the relevant appellate case law supports the plain meaning of the statute.

In Gail R. v. Bubbico, 114 Conn.App. 43, 968 A.2d 464 (2009), the Appellate Court reversed the trial court's judgment concluding that although the defendant's behavior was cause for concern, there was insufficient evidence before the court to prove that the defendant's behavior was a continuous threat of present physical pain or physical injury to the applicant and her sons.   Id. at 49, 968 A.2d 464 (2009).   In that matter, a dispute arose in the home while the live-in boyfriend was intoxicated;  neither the claimant nor the boyfriend alleged a physical altercation had occurred, and the boyfriend left the home shortly after.  Id. at 48, 968 A.2d 464 (2009).   Although the claimant made allegations that the boyfriend had a tendency to be violent when he was intoxicated and had previously caused harm, the court found such allegations did not constitute a present threat of violence.  Id. at 48–49, 968 A.2d 464 (2009).

Similarly, in Putman v. Kennedy, 104 Conn.App. 20, 932 A.2d 439 (2007), the Appellate Court reversed the judgment of the trial court because there was no evidence to support a conclusion that the plaintiff's daughters were subjected to a continuous threat of present physical pain or physical injury by their father.  Id. at 26, 932 A.2d 439 (2007).   There, the plaintiff testified that she feared her “daughters were in physical danger on the basis of the [defendant father's] prior physical altercation with her son, and her belief that the defendant is unstable.”  Id. at 23, 932 A.2d 439 (2007).   The plaintiff failed to provide evidence of a present, as opposed to a former, physical danger from the defendant, such that an order for immediate restraint of the defendant from the plaintiff and her daughters was necessary.   Although the court noted that the trial court “had a reasonable concern that the [defendant father's] actions may have endangered the daughters,” it found that the trial court's concern did not fall within the statute and that there was no basis “to determine that the daughters were in present physical danger.”   Id. at 26, 932 A.2d 439 (2007).

The applicant bears the burden of proving a continuous threat of present physical pain or physical injury.   In this matter, the court finds the applicant has not met this burden and has produced insufficient evidence to prove that the respondent's behavior is a continuous threat of present physical pain or physical injury.

ORDER:

For the foregoing reasons, the restraining order is dismissed.

Shluger, J.

Shluger, Kenneth L., J.