Macdonald v. Caruso

Tracy MacDONALD

v. Kevin CARUSO.

SJC-11381

Supreme Judicial Court of Massachusetts

Plymouth. Nov. 4, 2013

March 11, 2014

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Abuse Prevention. Practice, Civil, Presumptions and burden of proof. Evidence, Presumptions and burden of proof. Probate Court, General equity power.

COMPLAINT for protection from abuse filed in the Plymouth Division of the Probate and Family Court Department on June 25, 1999.

A motion to terminate an abuse prevention order, filed on May 20, 2011, was heard by Lisa A. Roberts, J.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Thomas Arthur Hensley for the defendant.

Claire Laporte, Rebecca Cazabon, Stacy Anderson, Benjamin Nardone, & Shrutih Ramlochan-Tewarie, for The Domestic & Sexual Violence Counsel, Inc., & others, amici curiae, submitted a brief.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.

GANTS, J.

The central issue in this case is the standard to be applied when a defendant seeks to terminate a permanent abuse prevention order under G.L. c. 209A, § 3. We conclude that a defendant who seeks to terminate such an order must show by clear and convincing evidence that, as a result of a significant change in circumstances, it is no longer equitable for the order to continue because the protected party no longer has a reasonable fear of imminent serious physical harm. Having considered the evidence presented here in support of the defendant's motion to terminate the permanent order, in light of the totality of the circumstances, we conclude that the judge did not abuse her discretion in denying the motion.¹

Background. According to the complaint and affidavit filed by the plaintiff, Tracy MacDonald, on June 25, 1999, in support of her application for an ex parte temporary restraining order under G.L. c. 209A, § 4, against the defendant, Kevin James Caruso, the plaintiff had obtained an "order of protection" in the State of New York against the defendant in March, 1994. She left New York, where she had resided, on November 6, 1995, because the defendant threatened to kill her, and she has not lived in New York since that date.² On June 1, 1999, she began receiving "odd mail" in Massachusetts, where she resided, postmarked in the region where the defendant then resided, stating that she had inquired about numerous products; one bore the defendant's handwriting. The defendant also used her social security number and forged her signature to acquire a credit card in her name, and she received a telephone call from the credit card company claiming that she was in default for failing to pay the $2,000 due on the card. On June 20, 1999, the plaintiff saw the defendant when she was on a boat ramp in Plymouth, near where she lived.

A Probate and Family Court judge issued a temporary abuse prevention order directing the defendant to refrain from abusing or contacting the plaintiff, to stay away from her residence in Halifax, and to surrender any firearms or ammunition to the police department in Highland, New York, where the defendant resided. The judge scheduled an adversary hearing for July 9, 1999, the date the temporary order was scheduled to expire. The defendant did not appear at the adversary hearing, and another Probate and Family Court judge issued an initial abuse prevention order for one year, to expire on July 9, 2000.³

The defendant was present for the hearing on July 7, 2000, the next designated hearing date, but the order was further extended for one year, to July 6, 2001, with a new hearing scheduled for that expiration date. The defendant again appeared at that hearing, where a permanent order entered, with the judge noting that the surrender of firearms to the police department should also be extended because the defendant presented a likelihood of abuse to the plaintiff. The defendant did not challenge the permanent order on direct appeal.

In May, 2011, the defendant moved to terminate the permanent abuse prevention order.⁴ In his verified motion, he attested:

"[T]here is no further need for the order, because it is now twelve years old, with no alleged or proven violations. He has moved from New York to Park City, Utah, and [p]laintiff now resides in Massachusetts, a separation distance of more than 2,100 miles. He is married since 2004, and happily so. He has retired from the business world, and now seeks to pass his time with various recreational activities that are available to him in his new home, as well as with travel. He has clearly moved on with his life...."

The defendant also noted that the abuse prevention order "continues to affect his life in ways that have nothing to do with [the][p]laintiff." The collateral consequences he described included extra scrutiny at airports, his disqualification from charitable pursuits that require record checks, and his inability to hunt and to obtain a pistol permit for self-protection. After a hearing, at which the plaintiff did not appear, the judge (who was the same judge who had ordered the second one-year extension after an adversary hearing) denied the defendant's motion, concluding that the defendant had not met his burden of proving, by clear and convincing evidence, that there has been a significant change of circumstances and that the order was unnecessary to protect the plaintiff from harm or the reasonable fear of harm.⁵

The defendant appealed, and in an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed the denial of the defendant's motion. MacDonald v. Caruso, 82 Mass.App.Ct. 1120 (2012). The court declined the defendant's invitation to modify the standard established in Mitchell v. Mitchell, 62 Mass.App.Ct. 769, 781 (2005), that an 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." Applying that standard, the court concluded that the judge did not err in finding that the defendant failed to meet this burden. We granted the defendant's application for further appellate review.

Discussion. General Laws c. 209A provides "a statutory mechanism by which victims of family or household abuse can enlist the aid of the State to prevent further abuse" through orders prohibiting a defendant from abusing or contacting the victim, or requiring a defendant to stay away from the victim's home or workplace. Commonwealth v. Gordon, 407 Mass. 340, 344 (1990). See G.L. c. 209A, § 3.⁶ The statute, with other abuse prevention statutes, reflects "the Commonwealth's public policy against domestic abuse--preservation of the fundamental human right to be protected from the devastating impact of family violence." Champagne v. Champagne, 429 Mass. 324, 327 (1999).

A temporary abuse prevention order may issue ex parte for up to ten court business days where a plaintiff shows a "substantial likelihood of immediate danger of abuse." G.L. c. 209A, § 4. After hearing, the temporary order may be extended for no more than one year if the plaintiff proves, 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.⁷ G.L. c. 209A, § 3. See Iamele v. Asselin, 444 Mass. 734, 734-735 (2005). At or about the date the initial order expires, the plaintiff may seek to extend the duration of the order "for any additional time necessary to protect the plaintiff" or obtain a permanent order. G.L. c. 209A, § 3. See Moreno v. Naranjo, 465 Mass. 1001, 1003 (2013) (where relief is warranted, judge owes duty under G.L. c. 209A "to extend ... abuse prevention orders for a time reasonably necessary for the protection of the plaintiff"); Crenshaw v. Macklin, 430 Mass. 633, 636 (2000) (duration of extension of initial abuse prevention order is within broad discretion of judge). The standard for obtaining an extension of an abuse prevention order is the same as for an initial order--"most commonly, the plaintiff will need to show a reasonable fear of imminent serious physical harm at the time that relief ... is sought." Iamele v. Asselin, supra at 735. See Smith v. Jones, 75 Mass.App.Ct. 540, 544 (2009). No presumption arises from the initial order; "it is the plaintiff's burden to establish that the facts that exist at the time extension of the order is sought justify relief." Smith v. Jones, 67 Mass.App.Ct. 129, 133-134 (2006). Therefore, a permanent order may not enter unless the plaintiff has twice proved by a preponderance of the evidence a reasonable fear of imminent serious physical harm. And where the initial order was one year in duration, the plaintiff must show that the fear of imminent serious physical harm remains reasonable approximately one year after the event that triggered the filing of the c. 209A complaint.

Where, as here, the defendant does not challenge on direct appeal the entry of a permanent abuse prevention order under G.L. c. 209A, it becomes a final equitable order. See Zullo v. Goguen, 423 Mass. 679, 682 (1996) ("orders under c. 209A are equitable in nature"). But relief from the order may still be obtained where it is "no longer equitable that the judgment should have prospective application." Mass. R. Civ. P. 60(b)(5), 365 Mass. 828 (1...