Opinion
21-P-1181 21-P-1182
07-25-2022
T.E. v. W.L. (and a companion case).[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an extension of civil harassment prevention orders issued against him under G. L. c. 258E, claiming that he was improperly denied the opportunity to present photographic and videotape evidence prior to the extension ruling. We conclude that the District Court judge did not abuse his discretion in making the challenged evidentiary rulings, or otherwise deprive the defendant of his right to due process, and affirm.
General Laws c. 258E, similar to G. L. c. 209A, requires the court to give the defendant "an opportunity to be heard on the question of continuing the temporary [harassment prevention] order and of granting other relief as requested by the plaintiff not later than 10 court business days after such orders are entered." G. L. c. 258E, § 5. The "hearing after notice . . . is an adversarial proceeding in which both parties must be allowed to present evidence . . . [and] given a meaningful opportunity to challenge the other's evidence." Guidelines for Judicial Practice: Abuse Prevention Proceedings § 5:01 (Oct. 2021). See F.A.P. v. J.E.S., 87 Mass.App.Ct. 595, 601 n.14 (2015) (holding that guidelines on abuse prevention proceedings should "apply equally in harassment order proceedings, absent some issue particular to harassment orders"). We review a judge's denial of a defendant's opportunity to present or challenge evidence for an abuse of discretion. See C.O. v. M.M., 442 Mass. 648, 657-658 (2004).
Well into the 258E extension hearing, which took place by telephone due to the COVID-19 pandemic, the defendant's counsel asserted that he had prepared exhibits but was unable to submit them to the court, or present them at the hearing, due to problems with the court's email system. As described by the defendant's counsel, the exhibits included photographs and video clips derived from surveillance footage of the condominium in which the parties resided, along with certain documentary evidence. The defendant's counsel requested a continuance of the hearing, while keeping the temporary order in effect, to allow him to present the exhibits. The plaintiffs' counsel objected to any continuance on the grounds that the exhibits were unreliable and inadmissible, as they were derived from footage accessible only to the defendant and his wife. After consideration, the judge decided to proceed with the hearing without the proposed exhibits and, upon conclusion of the hearing, extended the order for nine months.
The documentary evidence, as described by the defendant, included a notice sent to condominium unit owners that certain repair work would be performed on a particular date and time.
In deciding to proceed with the hearing, the judge considered the proposed evidence (as it was described by the defendant's counsel), weighed its potential relevance, and concluded that it would not sway his view of the case. Responding to the defendant's mid-hearing request to deliver the proposed evidence to the courthouse, the judge reasoned that there had been "sufficient time and information" for each party to prepare their case by the time of the hearing. Moreover, he expressed concern that video recordings of innocent encounters on one occasion would not establish that the harassing encounters recounted by the plaintiffs did not occur, albeit at other dates or times. On the record before us, we discern no abuse of discretion or deprivation of due process, occasioned by the judge's decision to proceed with the hearing despite the defendant's inability to present the described exhibits. As a threshold matter, we note that the COVID-19 pandemic has posed extraordinary challenges for judges and litigants alike, particularly during its early stages, and the judge in the present case was faced with difficult questions of how best to manage a statutorily mandated hearing in conditions that precluded an in-person proceeding. While we might have explored other possibilities than those that the judge adopted, we review for abuse of discretion, and do not substitute our judgment for that of the hearing judge. The defendant had "an opportunity to testify" and was able to "present evidence" in the form of his wife's testimony. CO., supra at 656 (citations omitted) . Contrast Idris I. v. Hazel H., 100 Mass.App.Ct. 784, 789 (2022) (finding error where judge did not allow testimony from defendant who was willing to testify). Furthermore, the defendant's counsel was allowed to cross-examine the plaintiffs extensively; indeed, the judge limited that inquiry only when he determined that the defendant's questions were repetitive. See S.T. v. E.M., 80 Mass.App.Ct. 423, 430-431 (2011) ("a judge surely may . . . interrupt an argument or a witness examination that has become repetitious"). As such, the defendant had a meaningful "opportunity to be heard" in the extension hearing. G. L. c. 258E, § 5.
Because the exhibits themselves were never presented to the trial court, they are not a part of the record before us for review, and we accordingly may (like the motion judge) consider them solely on the basis of the defendant's description of them.
Specifically, he observed that "some of the offered evidence would not be necessarily admissible . . . that information that was created potentially for the purposes of just this hearing from your witness, some of the other documents which may or may not be relevant or may or may not be dispositive, even in the light most favorable to the defendant, may or may not have been entered depending on what it purported to show. Often, as you have said several times today, there were different dates that were not specified, so therefore video evidence about a date which may or may not coincide with the dates specified would also be of questionable relevance and use to the [c]ourt."
The defendant elected not to testify, invoking his privilege under the Fifth Amendment to the United States Constitution. We note that, in this civil proceeding, the motion judge was permitted to draw an adverse inference from the defendant's invocation of his privilege against self-incrimination. See Frizado v. Frizado, 420 Mass. 592, 596 (1995).
Orders extending harassment prevention orders affirmed.
Green, C.J., Hand & D'Angelo, JJ.
The panelists are listed in order of seniority.