MacDonald v. Caruso

82 Mass.App.Ct. 1120

978 N.E.2d 106

Tracy MacDONALD

v.Kevin CARUSO.

No. 12–P–282.

Appeals Court of Massachusetts.

November 9, 2012.

Further appellate review granted Jan. 31, 2013.

OPINION TEXT STARTS HEREBy the Court (KAFKER, COHEN & TRAINOR, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from an order of the Probate and Family Court denying his motion to vacate a permanent G.L. c. 209A abuse prevention order. The order originally issued in 1999 and was made permanent in 2001. The defendant did not challenge this order on direct appeal. Ten years later, he moved to vacate the order. The judge denied his motion, and the defendant now appeals that denial.

The defendant claims that the abuse prevention order is no longer necessary. He has abided by its terms for twelve years. He has since remarried and moved to Utah. The plaintiff, the person protected by the order, did not oppose the defendant's motion to vacate the order. The defendant alleges that the abuse prevention order has also hindered his day-to-day life, having effects such as appearing on criminal records checks, facing extra scrutiny at airport security, and preventing the defendant from obtaining a firearms permit. In our review of the judge's decision to deny the defendant's motion, “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.” Iamele v. Asselin, 444 Mass. 734, 741 (2005).

On a collateral attack, a final abuse prevention order “should be set aside only in the most extraordinary circumstances and where it has been clearly and convincingly established that the order is no longer needed to protect the victim from harm or the reasonable fear of serious harm.” Mitchell v. Mitchell, 62 Mass.App.Ct. 769, 781 (2005).¹ Although the defendant has abided by the abuse prevention order for twelve years, “[t]he fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground ... of allowing an order to expire or be vacated....” G.L. c. 209A, § 3. Nor has the relocation of the defendant to Utah extinguished the need for the abuse prevention order. Cf. Caplan v. Donovan, 450 Mass. 463, 470–471, cert. denied, 553 U.S. 1018 (2008) (abuse prevention order validly issued despite no personal jurisdiction over Florida defendant). Finally, the fact...