Opinion
20-P-42
03-31-2021
J.C. v. J.C.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The appellant (defendant) appeals from a series of extensions of an abuse prevention order (order) issued in favor of the appellee (plaintiff) against him in the District Court, pursuant to G. L. c. 209A. He also challenges the denial of several motions, including four motions to vacate. We affirm certain orders and otherwise dismiss the appeals.
To avoid confusion occasioned by the fact that the parties each have the same initials, we refer to the appellant as the defendant, and to the appellee as the plaintiff.
The plaintiff did not participate in this appeal.
Background. The procedural history of this matter, which extends back to 2013, is not disputed. We summarize the relevant facts as the judges involved in each decision could have found them, reserving certain facts for later discussion.
The defendant challenges rulings across the life of the order, spanning six years and involving four different judges; some of the judges were involved in more than one aspect of the case. As we find no error, we do not separately identify the judges in this memorandum.
The parties were married in 2009 and filed for divorce the following year, after the birth of their twin children. On July 1, 2013, the plaintiff sought and obtained an ex parte abuse prevention order against the defendant on the grounds that the parties were "in the midst of a very volatile divorce," that the defendant had accumulated "40+ firearms" over the preceding twelve months, and that "given [the parties'] history in life, and throughout [the] probate issues and the extreme volatility in each," she was in fear that the defendant had the "potential to ... do harm" to her and believed that he was endangering the parties' children. See G. L. c. 209A, § 4 (temporary ex parte relief available where plaintiff "demonstrates a substantial likelihood of immediate danger of abuse").
The record of this July 1, 2013, hearing is limited, as the hearing itself appears not to have been recorded and the record could not be reconstructed.
The defendant was served with notice of the order and the date of the extension hearing, and appeared in court on July 15, 2013, represented by counsel. See G. L. c. 209A, § 4. During the hearing, the plaintiff described one instance of physical abuse several years earlier in the parties' marriage. She testified that during an argument, and while she was pregnant, the defendant "pulled [her] by the hair, [and] put [her] up against a wall by the throat." Discussing her present concerns, the plaintiff testified that at the time of the hearing, the parties were engaged in an ongoing "volatile probate situation," and that she was afraid of the defendant. The judge credited the plaintiff's testimony about the defendant's past physical abuse and her ongoing fear of the defendant, and extended the order for one year. See G. L. c. 209A, § 3 ("Any relief granted [in first order after notice] shall be for a fixed period of time not to exceed one year").
On July 26, 2013, the defendant moved to modify the order. The motion was denied on August 5, 2013. On August 8, 2013, the defendant moved to vacate the order. That motion was denied on August 15, 2013. Also on August 15, 2013, the defendant filed a notice of appeal of the ex parte order; the July 15, 2013, extension; and the denial of his July 26, 2013, and August 8, 2013, motions.
On August 20, 2013, and September 18, 2013, the defendant again moved to vacate the order. These motions, too, were denied, and the defendant filed timely notices of appeal of those rulings.
The defendant filed an additional, and unsuccessful, motion to vacate the order on November 26, 2013. He did not appeal from the denial of that motion.
The following year, on July 15, 2014, the parties again appeared in court for a hearing on the plaintiff's request for a further extension of the order. In anticipation of the hearing, the defendant had filed motions to conduct discovery, for an extended hearing, for a waiver of fees, to bring criminal charges against the plaintiff, and to allow fingerprinting of a firearm (2014 motions). The judge heard argument on the defendant's motion to conduct discovery, and then, with the defendant's agreement, suspended argument on the remaining 2014 motions in favor of conducting the extension hearing.
In the course of that extension hearing, the plaintiff testified that the parties were still engaged in divorce proceedings that were "contentious at best," and that the defendant was "controlling and manipulative" and "a volatile individual." The judge credited this testimony, and found that the plaintiff "remains in fear of [the defendant], [and] that the fear is reasonable based upon the history of the relationship between the parties, particularly in the context of what now is an acrimonious divorce and child custody battle." The judge extended the order for five years. See G. L. c. 209A, § 3 (on proper showing, and after first extension of order, judge may further extend order "for any additional time reasonably necessary to protect the plaintiff or [may] enter a permanent order"). She also denied the 2014 motions without additional hearing.
The defendant agreed that the motion for an extension of the hearing was moot.
The defendant filed a timely notice of appeal from the extension order and the orders denying the 2014 motions.
Five years later, on July 15, 2019, the parties returned to court for a hearing on the plaintiff's request for a further extension of the order. Based on the defendant's submission of "a written objection with ... a series of exhibits and evidence," the judge continued the hearing until August 20, 2019, and, with the defendant's agreement to the continuance, extended the order until that date.
On August 20, 2019, after further hearing, the judge extended the order permanently. In doing so, she credited the plaintiff's testimony about her ongoing fear of the defendant, and found the plaintiff's fear reasonable in light of the parties' ongoing divorce and the defendant's continued pursuit of other litigation focused on the plaintiff as indicators of the defendant's inability to "move on" from the plaintiff. The defendant filed a timely appeal from the extension order.
This notice of appeal, dated September 6, 2019, also purported to appeal evidentiary rulings made in the course of the July 15, 2019, hearing. To the extent we consider the July 15 rulings, we do so as part of our review of the extension granted on August 20, 2019.
Discussion. Not all the issues identified in the defendant's several notices of appeal are properly before us. We begin with those that are -- the 2014 and 2019 extensions of the abuse prevention order, and the defendant's motion for discovery (one of the 2014 motions) -- before briefly explaining why the others are not.
1. Chapter 209A. General Laws c. 209A, § 3, enables "[a] person suffering from abuse" by a "family or household member" to obtain an abuse prevention order. See G. L. c. 209A, § 3 ; Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 186 (2020). To obtain relief, a plaintiff must show "abuse" as defined in G. L. c. 209A, § 1. Where, as here, the plaintiff seeks an abuse prevention order based on abuse as defined in § 1 (a ), "[the] plaintiff does not need to prove a reasonable fear of imminent future physical abuse" in order to meet her burden of proof, as is required where a plaintiff alleges abuse under § 1 (b ) ; the plaintiff need only show that she continues to suffer from the effects of the abuse. Yahna Y., supra at 186-187. See Iamele v. Asselin, 444 Mass. 734, 740 n.3 (2005) (where plaintiff suffered from actual physical abuse, "there is no question that an extension should be granted"). See also Doe v. Keller, 57 Mass. App. Ct. 776, 778 (2003), quoting Pike v. Maguire, 47 Mass. App. Ct. 929, 929 (1999) ("The only criterion for extending the original order is a showing of continued need for the order"); Jones v. Gallagher, 54 Mass. App. Ct. 883, 890 (2002) (plaintiff's burden is to "make the case for the awarding of relief ... by a preponderance of the evidence"). Factors that the judge may consider include ongoing litigation that could "engender" or "reignite" the defendant's anger toward the plaintiff, the likelihood that the parties will encounter each other in the course of their usual activities, and the risk of abuse if the order should expire. See Iamele, supra at 740-741; Pike, supra at 929-930. These factors are to be considered in their totality, and in the context of the parties' relationship. See Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 665 (2020).
" ‘Abuse’ is defined by the statute as ‘the occurrence of one or more of the following acts between family or household members: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; [or] (c) causing another to engage involuntarily in sexual relations by force, threat or duress.’ " Yahna Y., 97 Mass. App. Ct. at 186, quoting G. L. c. 209A, § 1.
2. 2014 and 2019 extensions. We discern no abuse of discretion or legal error in the judges' 2014 and 2019 orders extending the plaintiff's abuse prevention order. See Noelle N., 97 Mass. App. Ct. at 664 (abuse prevention orders are reviewed "for an abuse of discretion or other error of law"). In each instance, the plaintiff testified that she remained in fear of the defendant, demonstrating ongoing harm from the defendant's physical abuse, and each judge determined that the plaintiff's fear was reasonable based on the parties' history together; the ongoing and contentious divorce and custody disputes; and, as to the 2019 extension, the defendant's campaign of litigation against the plaintiff apart from the parties' divorce. This evidence, credited by the judges, was all that was required for the plaintiff to meet her burden on each request for an extension of the order. See Yahna Y., 97 Mass. App. Ct. at 186-187.
We reiterate that, contrary to the defendant's argument, the plaintiff was not required to prove that she had suffered recent physical abuse, only that she feared such abuse if the order was not extended. See Yahna Y., 97 Mass. App. Ct. at 186 ; Keller, 57 Mass. App. Ct. at 778. See also Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014) ("a judge may reasonably conclude that there is a continued need for the order [based upon damage from past abuse] even when further physical attack is not reasonably imminent").
To the extent that the judges' orders depended on their assessments of the weight and credibility of the parties and their evidence, "[w]e accord the credibility determinations of the judge who ‘heard the testimony of the parties ... [and] observed their demeanor ... the utmost deference" (quotation omitted). Noelle N., 97 Mass. App. Ct. at 664, quoting Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006). We see no reason to second-guess the judges in this case.
Likewise, we conclude that the judges evenhandedly managed the conduct of the hearings at issue, and acted within their discretion in considering and relying upon evidence of physical abuse not included in the plaintiff's original affidavit; in limiting the scope and extent of the defendant's interrogation of opposing witnesses; and in the evidentiary rulings concerning hearsay. See Frizado v. Frizado, 420 Mass. 592, 597-598 (1995) (adherence to rules of evidence not necessary in abuse prevention order proceedings "provided that there is fairness in what evidence is admitted and relied upon"); V.M. v. R.B., 94 Mass. App. Ct. 522, 524 (2018), quoting C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 564 (2017) (in challenging abuse prevention order, "a defendant is not entitled to relitigate each stage of the proceedings"); M.B. v. J.B., 86 Mass. App. Ct. 108, 110 n.5 (2014) (fairness, not adherence to usual rules of evidence, is touchstone in abuse prevention order hearings).
The judges did not abuse their discretion by extending the orders without making findings of fact beyond those included in the order itself. See Nelson N. v. Patsy P., 98 Mass. App. Ct. 78, 81 n.7 (2020), quoting G.B. v. C.A., 94 Mass. App. Ct. 389, 396 (2018) ("[W]here we are able to discern a reasonable basis for the order in the judge's rulings and order, no specific findings are required"). Cf. G. L. c. 209A, § 3 (statutory language does not require findings in context of ordinary G. L. c. 209A proceedings).
We likewise discern no error of law or abuse of discretion in the judges' determinations, on the evidence that each judge credited after hearing, that the five-year extension ordered in 2014, and the permanent order issued in 2019, were each "reasonably necessary" to protect the plaintiff. See Crenshaw v. Macklin, 430 Mass. 633, 633 (2000) (" G. L. c. 209A, § 3, empowers a judge ... to issue a permanent protective order at a renewal hearing" following the first hearing after notice); Lonergan-Gillen v. Gillen, 57 Mass. App. Ct. 746, 748 (2003) (same).
3. 2014 discovery motion. "Discovery orders [in abuse prevention order proceedings] are within the court's discretion and should be issued only ... upon a showing that such discovery is necessary to provide specific information essential to the adjudication of the case[.]" Guidelines for Judicial Practice: Abuse Prevention Proceedings (Guidelines) § 1:03, at 13 (2011). The defendant's motion sought discovery, generally, without providing any detail about the topic, purpose, and scope of the defendant's request. See Guidelines § 1:03, commentary (discovery should be allowed "only when determined by the court to be necessary for a particular purpose"; discovery of "relevant" or "interesting" information "should not be ordered"). The judge did not abuse her discretion in denying it. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (under "abuse of discretion [standard], [we] must give great deference to the judge[ ]").
4. Handwritten notes. Finally, we reject the defendant's argument that unattributed notes left in the case file and provided to the defendant when the file was photocopied provide evidence that any judge involved in the issuance of these orders was biased against him. Even if the notes could be attributed to one of the judges who extended the order against him, the notes appear to refer to, among matters in the timeline of events, the defendant's arrest in 2010 and a restraining order taken out against him in 1994. Rather than being, as the defendant contends, "extra-case evidence against him," the notes are at best a reflection that the judge followed the procedures prescribed by the abuse prevention statute, including the requirement that judges consider past violations of restraining orders and other criminal conduct by a defendant before deciding whether to extend a restraining order. See G. L. c. 209A, § 7 ("When considering a complaint filed under [G. L. c. 209A], a judge shall ... search ... to determine whether the named defendant has a civil or criminal record involving domestic or other violence").
Given the state of the record provided by the defendant, we cannot evaluate whether the evidence was in fact "extra-case."
5. Other issues. As we have noted, not all of the issues identified in the defendant's notices of appeal are properly before us. First, in light of the fact that the ex parte order was extended following a hearing after notice, the ex parte order itself is not subject to appeal. See C.R.S., 92 Mass. App. Ct. at 563. See also V.M., 94 Mass. App. Ct. at 524-525. The defendant's appeal of that order is dismissed. See id. at 527.
Next, although we conclude that the defendant filed timely notices of appeal fromthe August 5, 2013, August 15, 2013, August 30, 2013, and September 30, 2013 orders denying his motions to vacate or modify the order, and from the July 15, 2014, denial of his 2014 motions, he either failed to include copies of the relevant motions in the record, failed to present legal and factual support amounting to adequate appellate argument, or both. Accordingly, we shall dismiss these appeals without further discussion. See Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011) (where appellant "failed to support his claims of error with sufficient legal argument ... and fails to cite to sufficient supporting authority ... [the] submissions provide an insufficient basis" for appellate consideration); Everett v. 357 Corp., 453 Mass. 585, 604 n.26 (2009), quoting Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007) ("When 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"); Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief").
Finally, the defendant's August 15, 2013, notice of appeal of the one-year extension of the order, issued on July 15, 2013, was not filed within thirty days of the order, and therefore was untimely. See Mass. R. A. P. 4 (a) (1), as amended, 464 Mass. 1601 (2013). Accordingly, we are constrained to dismiss the defendant's appeal of that extension order. See DeLucia v. Kfoury, 93 Mass. App. Ct. 166, 170 (2018) ("A timely notice of appeal is a jurisdictional prerequisite to our authority to consider any matter on appeal").
The defendant does not address the timing of his notice of appeal. Given that the defendant missed the deadline for filing his notice of appeal by one day, we look for guidance to the Massachusetts Rules of Civil Procedure. See M.G. v. G.A., 94 Mass. App. Ct. 139, 145 (2018) (concluding that Massachusetts Rules of Civil Procedure do not apply to G. L. c. 209A cases in District Court, but noting "guidance" supplied in those rules). Even if the defendant's motions to modify and to vacate the one-year extension order are treated as motions to alter or amend pursuant to Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), see Stephens v. Global NAPs, 70 Mass. App. Ct. 676, 682 (2007), neither motion was timely under Mass. R. A. P. 4 (a) (3), as amended, 430 Mass. 1601 (2013). Accordingly, neither would toll the time for filing a notice of appeal.
Were we to consider the defendant's appeal of this extension, his arguments would fail. The evidence credited by the judge after the hearing was sufficient to meet the criteria for extension, discussed supra. See Iamele, 444 Mass. at 739-741 ; Yahna Y., 97 Mass. App. Ct. at 187, quoting Callahan, 85 Mass. App. Ct. at 374 (when plaintiff has suffered physical abuse, abuse prevention order properly issued "because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent"). The judge did not abuse her discretion in making evidentiary rulings, see Frizado, 420 Mass. at 597-598 (in abuse prevention order proceedings, "the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied upon"), and in the circumstances here, was not required to make written findings supporting her decision. See Nelson N., 98 Mass. App. Ct. at 81 n.7 (2020), quoting G.B., 94 Mass. App. Ct. at 396 ("[W]here we are able to discern a reasonable basis for the order in the judge's rulings and order, no specific findings are required"). Cf. G. L. c. 209A, § 3. The judge was not asked to transfer the case to the Probate and Family Court and, in any event, the defendant cites to no authority for such a transfer. See Guidelines § 2:07, at 45 ("Plaintiffs seeking relief initially in the District Court ... should not be referred to the Probate and Family Court Department for any relief that is within the initial court's jurisdiction, regardless of marital status or the involvement of children").
To the extent that the defendant's appeal raises other arguments not discussed here, we have not overlooked them, but conclude that they have no merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Conclusion. The defendant's appeals from the ex parte abuse prevention order issued on July 1, 2013; the initial extension of that order on July 15, 2013; and the four orders dated August 5, 2013, August 15, 2013, August 30, 2013, and September 30, 2013, are dismissed. The defendant's appeal from the orders denying his motions scheduled for hearing on July 15, 2014, with the exception of the defendant's motion for discovery, is also dismissed.
The orders extending the abuse prevention order on July 15, 2014, and August 20, 2019, are affirmed, as is the July 15, 2014 order denying the defendant's motion for discovery.
So ordered.
affirmed