C.S. v. R.K.

98 Mass.App.Ct. 1115

157 N.E.3d 103 (Table)

C.S.

v.R.K.

19-P-1770

Appeals Court of Massachusetts.

Entered: October 23, 2020.

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.² We affirm.

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).³ 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.

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."⁴ 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 judge extended the order under G. L. c. 209A for a period of two years.⁵ 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.

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.⁶ 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."

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."⁷

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.⁸ 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.

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.⁹

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...