J.C. v. J.C.

99 Mass.App.Ct. 1117

167 N.E.3d 881 (Table)

J.C.

v.J.C.

20-P-42

Appeals Court of Massachusetts.

Entered: March 31, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The appellant (defendant)² 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.³ He also challenges the denial of several motions, including four motions to vacate. We affirm certain orders and otherwise dismiss the appeals.

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.⁴

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.⁵ See G. L. c. 209A, § 4 (temporary ex parte relief available where plaintiff "demonstrates a substantial likelihood of immediate danger of abuse").

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.⁶

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.⁷

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.⁸

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, § 1.⁹ 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).

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,¹⁰ 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.

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...