G.B. v. C.A.

94 Mass.App.Ct. 389

114 N.E.3d 86

G.B.

v.C.A.

No. 17-P-924

Appeals Court of Massachusetts, Norfolk..

Argued May 3, 2018

Decided November 1, 2018

Syrie D. Fried, Boston, for the defendant.

Present: Sullivan, Blake, & Englander, JJ.

BLAKE, J.

Following a three-day evidentiary hearing, a judge of the District Court extended an abuse prevention order, which had been issued ex parte, for a period of one year. The defendant appeals,¹ claiming that the evidence was insufficient to issue the G. L. c. 209A order (209A order) and that the doctrine of res judicata precludes entry of the order. We affirm.

1. Chapter 209A proceedings. a. December 4, 2015, complaint. We summarize the facts as the judge may have found them. Compare Aguilar v. Hernandez-Mendez, 66 Mass. App. Ct. 367, 367-368 & n.1, 848 N.E.2d 779 (2006). The parties were involved in a dating relationship for close to three years. Their relationship ended on December 2, 2015. The following day, December 3, the defendant, a Boston police officer, appeared at the plaintiff's workplace.² A struggle ensued when he attempted to return ceramic flowers to the plaintiff, which he had taken from her home after having given them to her as a gift about a year earlier. The incident was captured by the plaintiff's workplace security cameras, from two different angles. The video equipment did not record sound.

The videotape recordings show that the plaintiff threw the flowers in the trash, and the defendant, who had moved behind the service counter, attempted to, and finally did, retrieve them. The plaintiff lunged at the defendant, pointing long fingernails toward his face, and a struggle ensued. Some of the struggle appears on the recording, showing the plaintiff attempting to take the flowers back, and the defendant keeping them away from her. The parties then went off camera for a period of time. The plaintiff eventually landed on the ground, injuring her face and lip.³ The recording did not capture how she landed there or how she was injured. The parties then came into the range of the camera and became visible on the recording. As the plaintiff attempted to call the police, the defendant tried to get the cellular telephone (cell phone) away from her; he boxed her in to a corner of the store. The plaintiff was initially unsuccessful in calling the police; the defendant disconnected and muted her cell phone. The defendant admitted that he had done so, contending that he wanted to talk to the plaintiff about the situation because "it might not be good for [her]." As a result of the 911 hang-up call, a 911 operator called back and the defendant answered the plaintiff's cell phone. The defendant then left the store and walked across the street to the police station.⁴ Officers arrived on the scene and spoke to him at length. They then came in the store, and the recording was played for them. Initially, they did not speak to the plaintiff; she spoke Spanish and none of the officers spoke Spanish. Eventually, a Spanish-speaking officer arrived and assisted in interviewing the plaintiff. The plaintiff was transported to a hospital, treated, and released.

The following day, December 4, 2015, both parties appeared at the West Roxbury Division of the Boston Municipal Court, each seeking a 209A order against the other. The judge requested that the video recording of the incident be brought to the court. After viewing the video, the judge denied both 209A requests.⁵

Sergeant Detective John Hamilton, a member of the Boston police department domestic violence unit, was assigned to this case. Following his investigation, Hamilton determined that the plaintiff was the aggressor. As a result, he sought a criminal complaint against her for assault and battery on a family member, with a hearing date of February 2, 2016. The defendant was not charged with any offense. The matter was also referred to the police department's internal affairs division because it was a domestic violence incident involving a Boston police officer.

b. January 15, 2016, complaint. Approximately six weeks later, on January 15, 2016, the plaintiff returned to the West Roxbury court house and filed another complaint seeking a 209A order. In her affidavit, the plaintiff alleged that on December 9, 2015, the defendant followed her in his motor vehicle. She stated that she was sitting in the passenger seat of a motor vehicle when the defendant pulled up next to her and looked at her with "anger in his face." When she grabbed her phone to call 911, the defendant drove away. She further alleged that, on January 2, 2016, the defendant solicited a friend from Spain to call her and "threaten [her] to not go to court" on February 2, 2016. The plaintiff averred that the defendant was intimidating her and that she did not feel safe. A different judge denied her request for a 209A order.

c. Clerk magistrate hearing. On February 2, 2016, the parties appeared before a clerk magistrate for a hearing on the criminal complaint application against the plaintiff stemming from the December 3, 2015, altercation. After the hearing, and with both parties' assent, the clerk magistrate took no action. She told the parties that she would hold the application "in abeyance" for sixty days and that, if there were no further incidents, the complaint would be dismissed. She also told the parties to stay away from one another. The application was ultimately dismissed with the following notations: "no probable cause found," "request of complainant," and "failure to prosecute."d. May 12, 2016, complaint. On May 12, 2016, the plaintiff returned to the West Roxbury court house and filed another complaint seeking a 209A order. The complaint itself stated that the defendant carried a gun, and listed December 3 and 9, 2015, as prior abuse dates. In her affidavit, which directed the plaintiff to "[d]escribe in detail the most recent incidents of abuse," she alleged that the defendant was "not complying with the order of not contacting me." Specifically, she alleged that the defendant drove by her work; that, on May 7, 2016, he had contacted her on an Internet application called "WhatsApp," and that he "went to Housing to try to tell lies."⁶ She also stated that the defendant was following her from her children's school and that internal affairs was investigating him. The plaintiff's request for a 209A order was continued for a two-party hearing on May 19, 2016, at which time both parties appeared. A third judge denied the requested order.

e. June 30, 2016, complaint. On June 30, 2016, the plaintiff returned for a fourth time to the West Roxbury court house seeking a 209A order. Because the plaintiff had moved to a location outside of the West Roxbury jurisdiction, she was referred to the Dedham District Court. There, she applied for a 209A order, which was granted after an ex parte hearing. The extension of this order is the subject of the present appeal. In the June 30 complaint, the plaintiff recounted the December 3, 2015, altercation, indicating that the defendant grabbed her, struck her in the face, pushed her, and slammed her against the ground. She also claimed that two different judges on two different dates ordered the defendant to stay away from her, not to drive by her job, and not to contact her in any way, and that he had violated those orders on five separate dates.⁷ She stated that she is "tired of being afraid and always looking over [her] shoulders." The judge entered an ex parte 209A order and scheduled the matter for a further hearing. A different judge presided over a three-day evidentiary hearing and extended the 209A order for one year, to July 14, 2017. This appeal followed.

2. Sufficiency of the evidence of abuse. We review the issuance of a 209A order "for an abuse of discretion or other error of law." E.C.O. v. Compton, 464 Mass. 558, 562, 984 N.E.2d 787 (2013). "[A] judge's discretionary decision constitutes an abuse of discretion where [the reviewing court] conclude[s] the judge made a clear error of judgment in weighing the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27, 20 N.E.3d 930 (2014). A plaintiff seeking the extension of an abuse prevention order must prove "by a preponderance of the evidence ... that the defendant has caused or attempted to cause physical harm, committed a sexual assault, or placed the plaintiff in reasonable fear of imminent serious physical harm." MacDonald v. Caruso, 467 Mass. 382, 386, 5 N.E.3d 831 (2014). See Iamele v. Asselin, 444 Mass. 734, 736-737, 831 N.E.2d 324 (2005). "In reviewing the judge's decision to [allow] the plaintiff's request for an extension of her protective order, we will not substitute our judgment for that of the trier of fact. We do, however, scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts" (quotation omitted). Id. at 741, 831 N.E.2d 324.

The defendant argues that the plaintiff failed to prove, by a preponderance of the evidence, that she suffered abuse.⁸ He focuses his claim on the fact that the only "new" evidence presented by the plaintiff in support of the 209A request was an incident where the defendant drove by the plaintiff's workplace. While we might agree that that incident, in isolation, would be insufficient for the issuance of a 209A order, this does not end the inquiry. Our cases are clear that "[i]n evaluating whether a plaintiff has met her burden, a judge must consider the totality of the circumstances of the parties' relationship." Id. at 740, 831 N.E.2d 324. This is so because "[s]uch consideration furthers the Legislature's purpose to establish a statutory framework to ‘preserv[e] ... the fundamental human right to be protected from the devastating impact of family violence.’ " Id., quoting Champagne v. Champagne, 429 Mass. 324, 327, 708 N.E.2d...