Opinion
19-P-1770
10-23-2020
C.S. v. R.K.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
R.K. appeals, pro se, from an abuse prevention order issued against him and in favor of C.S., pursuant to G. L. c. 209A (209A order), by a judge of the District Court, and from the order of a different District Court judge denying his subsequent motion to vacate the 209A order. We affirm.
C.S. has not appeared in this appeal.
Background. On July 24, 2019, the plaintiff, C.S., obtained an ex parte harassment prevention order against the defendant, R.K., pursuant to G. L. c. 258E (258E order). In support of her complaint, the plaintiff provided an affidavit identifying several incidents of alleged harassment, including one on July 23, 2019, in which the plaintiff averred that the defendant repeatedly drove by her home, then blocked her driveway and made "violent gestures" causing her to run into the house. The defendant was served with the order on July 29, 2019. The matter was continued to August 7, 2019, for a two-party hearing.
At all times relevant to this appeal, the parties have each been pro se.
On August 7, 2019, both the plaintiff and the defendant appeared for the hearing. The plaintiff sought to have the 258E order extended, and the defendant opposed. The judge held an evidentiary hearing in the course of which the plaintiff, the defendant, and L.S., another witness called by the defendant, all testified.
At the conclusion of the hearing, the judge made detailed oral findings on the record to support his conclusion that the plaintiff had carried her burden of proof on her request for an extension of the 258E order, and indicated his intention to extend it. Based on his assessment of the evidence presented in the course of the hearing, including the defendant's testimony about the nature of his relationship with the plaintiff during the period leading up to her filing for the harassment prevention order, the judge concluded that the parties had engaged in a "[substantive] dating relationship." Crediting, additionally, the plaintiff's testimony that the defendant had both threatened her in a way that frightened her, and, on one occasion, bruised her, the judge determined the plaintiff had demonstrated that the appropriate protective order was an abuse prevention order, rather than a harassment prevention order, and so issued an order to the plaintiff and against the defendant pursuant to G. L. c. 209A. See G. L. c. 209A, § 1 (defining "Family or household members" to include "persons who ... are or have been in a substantive dating ... relationship"); Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 664 (2020), quoting G. L. c. 209A, § 1 (judge may issue order under G. L. c. 209A where plaintiff demonstrates, by preponderance of evidence, that defendant placed plaintiff "in fear of imminent serious physical harm," and plaintiff's fear is reasonable). Compare G. L. c. 209A, with G. L. c. 258E.
The defendant does not contest that finding. The following excerpt from the defendant's testimony at the hearing is illustrative:
Defendant : "[The plaintiff] came over [to] the house repeatedly to ... go over her legal work and to go swimming at my house in my pool. We went out on numerous occasions to MGM, to -- to breakfast, to dinner, all this ... one time one shot thing is a crock."
The Court : "So are you saying you had a dating relationship with [the plaintiff]?"
Defendant : "On a regular basis. And the sex was --"
The Court : "Did you have a dating relation?"
Defendant : "Yes."
The Court : "And you had [a] romantic physical relationship with her as well?"
Defendant : "Numerous times, Your Honor."
The judge extended the order under G. L. c. 209A for a period of two years. Although the defendant was present in court when the judge expressed his intention to extend the harassment prevention order, he walked out of the courtroom while the judge was explaining his rationale, and before the extension date was announced, stating, "I'm not listening to this." The defendant was later served with a copy of the 209A order.
To the extent that the order exceeded the time limit for the extension pursuant to G. L. c. 209A, § 3, the defendant has not raised the issue and, accordingly, has waived it. See G. L. c. 209A, § 3 (first-time extension limited to one year). See also Garrity v. Conservation Comm'n of Hingham, 462 Mass. 779, 785 (2012), quoting Canal Elec. Co. v. Westinghouse Elec. Corp., 406 Mass. 369, 377 (1990) (statutory right "may be waived when the waiver would not frustrate the public policies of the statute"); Brown v. Savings Bank Life Ins. Co., 93 Mass. App. Ct. 572, 582 (2018) (same); Callahan v. Callahan, 85 Mass. App. Ct. 369, 373-374 (2014) ("General Laws c. 209A embodies the important public policy of preserving the fundamental right to be protected from the devastating impact of domestic abuse").
The defendant subsequently filed a motion to vacate the 209A order based on "fraud and newly discovered evidence," contending that the plaintiff's affidavit and testimony were vague. The defendant also argued that the judge demonstrated bias against him when he considered the defendant's past criminal record as a factor in his decision to extend the order, and that the plaintiff was not credible. Finally, the defendant argued that the judge erred in converting the harassment prevention order into an abuse prevention order "based solely on the fact, that the court did not like the defendant walking out of the court as the judge was granting the [harassment prevention] order."
Based on the defendant's attachments of affidavits signed under the names of the defendant's son and his son's girlfriend, stating that the defendant was at home with them on July 23, 2019, at the time that the plaintiff testified that the defendant was in her driveway, making a threatening gesture to her, we conclude that the defendant's vagueness argument related to that incident.
The motion to vacate was marked for a hearing on August 23, 2019. A different judge (motion judge) called the case, denied the defendant's request to reopen the evidence, and, noting that the first judge had conducted a "full hearing" on the plaintiff's extension request, at which both parties were present, denied the defendant's motion to vacate the existing order. The defendant appeals both the extension of the order and the order denying his motion to vacate.
Discussion. 1. 209A order. The defendant raises three challenges to the judge's extension of the order, arguing that: (1) the affidavit in support of the ex parte 258E order did not provide him adequate notice of the specifics of the plaintiff's allegations against him, leaving him unprepared to defend against the allegations at the hearing after notice; (2) the judge abused his discretion in assessing the relevance, weight, and credibility of the parties' evidence; and (3) the judge demonstrated bias in the hearing process and exceeded his authority in extending the ex parte harassment prevention order as an abuse prevention order. We are not persuaded that the judge abused his discretion in extending the order. See Noelle N., 97 Mass. App. Ct. at 664 (abuse of discretion standard).
a. Notice. The affidavit filed by the plaintiff in support of the ex parte 258E order identified several incidents of alleged harassment, including one on July 23, 2019, in which the plaintiff averred that the defendant repeatedly drove by her home then blocked her driveway, stared at her, and made "violent gestures." She later testified at the hearing that the defendant mimed shooting himself in the temple, that she understood the gesture to be a threat, and that she was frightened.
To the extent the defendant's argument on appeal is that the judge improperly relied on the plaintiff's affidavit, it is unavailing. Although the judge confirmed at the outset of the hearing that he had "reviewed" both the plaintiff's affidavit and the defendant's affidavit, he was explicit in stating that his rulings were based on the witnesses' testimony at the hearing -- "the Court is not relying on your affidavits. I need to hear independent testimony."
The judge clarified that the defendant was not required to testify, and could submit other evidence.
Any argument by the defendant that the judge improperly limited his ability to offer evidence in his own defense also fails, as does his argument that he was unprepared to defend against the plaintiff's claim that he came to her home and threatened her on the afternoon of July 23, 2019, which is belied by his attempt, at the two-party hearing, to offer the affidavit of his witness, L.S., as an alibi. The affidavit of L.S. was signed nearly two weeks before the date of the hearing, signaling that the defendant was well aware of the plaintiff's claim of his visit.
In that affidavit, L.S. avers to her knowledge that the defendant was at home with his son and his son's girlfriend at the time that the plaintiff testified that the defendant was threatening her in her driveway.
Although the judge declined to consider L.S.'s affidavit, L.S. testified on behalf of the defendant at the hearing; the defendant chose not to ask L.S. about the alibi she provided in her affidavit. Neither did the defendant seek an opportunity to call either his son or his son's girlfriend as witnesses, despite having represented that his son and his son's girlfriend would confirm his alibi -- "they will testify to that." Indeed, when, after the defendant and the defendant's witness testified, the judge asked the defendant if he wished to introduce any other evidence, the defendant declined the opportunity.
Specifically, the following exchange occurred:
The Court : "Anything else, [defendant]?"
Defendant : "Not that I can think of, Your Honor."
Ultimately, the defendant chose to rely on his own testimony to contradict that of the plaintiff. That the defendant's strategy was unsuccessful was not the result of any abuse of discretion by the judge.
b. Judge's assessment of the evidence. Evidentiary rulings are committed to the sound discretion of the judge. See A.P. v. M.T., 92 Mass. App. Ct. 156, 161 (2017) (judge has broad discretion in ruling on evidentiary issues). See also L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (defining abuse of discretion).
Here, the defendant was not denied the opportunity to present evidence; only the form of that evidence was limited. This was permissible. See Noelle N., 97 Mass. App. Ct. at 661 n.2, quoting Guidelines for Judicial Practice: Abuse Prevention Proceedings § 5:03 (2011) (Guidelines) ("as [the Guidelines make] clear, in a c. 209A proceeding, ‘[t]he common law rules of evidence, e.g., those regarding hearsay, authentication, and best evidence, should be applied with flexibility, subject to considerations of fundamental fairness’ "). The judge provided the defendant with a full opportunity to testify on his own behalf and to introduce a friendly witness, L.S. As we have noted, the defendant did not seek to call either his son or his son's girlfriend to testify. The judge acted well within his discretion in his evidentiary rulings. See F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 601 (2015), quoting C.O. v. M.M., 442 Mass. 648, 657 (2004) (where defendant provided "a ‘meaningful opportunity to challenge the other's evidence,’ ... that is all that is ultimately required"). See also A.P., 92 Mass. App. Ct. at 161 (rules of evidence need not be followed in hearing on harassment prevention order, provided evidentiary rulings are fair).
Nor are we persuaded by the defendant's amorphous complaints of bias. It was for the judge, as the fact finder, to assess the credibility and weight of the evidence; there is nothing in the record to suggest he failed to do so evenhandedly. See S.T. v. E.M., 80 Mass. App. Ct. 423, 429 (2011) (reiterating need for "full and fair [abuse prevention order] hearing"). See also Mass. G. Evid. § 1106 (2020).
As to the defendant's challenge to the judge's consideration of the defendant's criminal record and history of prior restraining orders, in reviewing "the Statewide domestic violence recordkeeping system and the court activity record information system," the judge was doing what was required. Seney v. Morhy, 467 Mass. 58, 60 (2014), citing G. L. c. 258E, § 9.
c. Conversion of order from harassment prevention order to abuse prevention order. On appeal, the defendant provides neither record support nor legal citations in support of his contention that the judge erred in extending the ex parte 258E order to a 209A order following a hearing with notice. The defendant's argument does not rise to the level of appellate argument, and we thus need not address it. See Zora v. State Ethics Comm'n, 415 Mass. 640, 642 n.3 (1993) ("bald assertions of error, lacking legal argument and authority," do not rise to level of appellate argument); Donovan v. Gardner, 50 Mass. App. Ct. 595, 602 (2000) (conclusory statements in brief do not rise to level of appellate argument). Were we to do so, however, we would conclude that the evidence the judge heard in the course of the two-party hearing was sufficient to meet the requirements for issuance of the 209A order. See Noelle N., 97 Mass. App. Ct. at 666 (explaining how evidence of individual encounters can aggregate to provide judge with fuller context of party's relationship).
Where a judge finds a basis to make such a conversion, the better practice would be to require the plaintiff to complete a complaint for the order being issued, here, for an abuse prevention order pursuant to G. L. c. 209A. The judge here may well have done so; the record before us does not include a copy of the order as the judge issued it. See Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007) (appellants have "obligation to include in the record appendix any documents on which [they] rel[y]" and, "[w]hen a party fails to include a document in the record appendix, an appellate court is not required to look beyond that appendix to consider the missing document").
2. Motion to vacate order. The defendant argues that his right to a fair hearing was violated when the motion judge declined to reopen the evidence and summarily denied the defendant's motion to vacate the 209A order. Interpreting this as a due process challenge, we disagree that the motion judge denied the defendant due process.
The defendant had a full and fair opportunity to present evidence at the extension hearing, and he did so. Despite the defendant's contention on appeal that the motion to vacate relied on "new evidence," on the record before us, it did not do so. Although the motion to vacate attached four affidavits -- affidavits from the defendant, L.S., the defendant's son, and the defendant's son's girlfriend -- as well as a copy of the plaintiff's complaint under G. L. c. 258E, the defendant had already been given a full opportunity to testify and present evidence. That was the due process that was required, see C.O., 442 Mass. at 656, and there was no abuse of discretion or other error in the motion judge's rulings. See Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 781 (2005) (where abuse prevention order satisfies due process requirements, order will be set aside "only in the most extraordinary circumstances").
Conclusion. The G. L. c. 209A extension order dated August 7, 2019, and the order denying the defendant's motion to vacate are affirmed.
We have carefully considered each of the remaining arguments presented in the defendant's brief. To the extent that any particular claim has not been specifically addressed herein, we have found it to be without merit. See Department of Revenue v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004).
So ordered.
Affirmed