Opinion
15-P-1429
03-07-2017
A.K. v. J.G.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a hearing, a judge of the District Court issued an abuse prevention order pursuant to G. L. c. 209A against the defendant, J.G., ordering him not to abuse the plaintiff, A.K.; not to contact him; to stay a distance away from him, his home, and his job; and to surrender immediately all "guns, ammunition, gun licenses and [firearm identification] cards." The defendant appeals, arguing (1) the evidence was insufficient to meet the plaintiff's burden of showing that the defendant had abused him; (2) the judge's responses to the parties' testimony indicated that he "did not understand the hi-tech means that the parties used to contact each other, and reacted by mocking and criticizing them improperly"; (3) the judge made no findings of fact or credibility before extending the restraining order for one year; and (4) notwithstanding the fact that the pro se defendant did not object to the court's jurisdiction, he should be permitted to raise before this court the hearing court's lack of personal jurisdiction, because the imposition of an order to surrender all "guns, ammunition, gun licenses and [firearm identification] cards" creates a particular hardship for him and would not have been permitted had he raised the issue at the time of the hearing. We vacate the order and remand the matter to the District Court for a new hearing, in order to provide the defendant with an opportunity to present his evidence and to confront the evidence offered by the plaintiff.
It is clear that the plaintiff did, in fact, provide testimony that, if credited by the judge, would have supported the issuance of an abuse prevention order. (For example: "He's been threatening me and my family for several years now. ... I'm in immediate fear for my life. He threatened to hurt my family because I testified against him. ... On March 12th he said ‘I'm going to kill you and your family.’ " The plaintiff testified that he knew that the telephoned threat was from the defendant because he knew the defendant's voice.) The plaintiff also described a history of physical abuse, and offered photographs of what he testified were "scratches on [his] face, bruises, ... [his] busted cheek."
The plaintiff's affidavit in support of his application for an abuse prevention order does not appear in the record appendix.
Apparently, the photographs were not admitted in evidence. At least, they do not appear in the record appendix.
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It is not clear, however, that the defendant was given a meaningful opportunity to present his case or to challenge the plaintiff's case. See Frizado v. Frizado , 420 Mass. 592, 597 (1995). Both parties appeared at the hearing pro se. In addition to the plaintiff's photographs, the defendant apparently offered a packet of papers containing lists of electronic mail messages, police reports, and statements from other witnesses, none of which appears in the record. Neither party's testimony was particularly organized or straightforward. In fairness, the judge then complicated the presentations by interrupting repeatedly, in an apparent effort to get the two to focus on the relevant issues. By the end of the hearing, at least from the transcript, it appears that the judge had become frustrated with both parties. With the benefit of hindsight, we are persuaded that the defendant was not given a fair opportunity to present his case and that he should be given a new opportunity to do so.
"We recognize that there is often an informality to c. 209A abuse prevention proceedings in a busy court. [ Id .] at 598 (‘The Legislature devised a procedure in G. L. c. 209A that is intended to be expeditious and as comfortable as it reasonably can be for a lay person to pursue. Judges often must deal with large numbers of these emotional matters in busy court sessions'). Nonetheless, certain minimum standards of fairness must be observed." S.T . v. E.M ., 80 Mass. App. Ct. 423, 429 (2011).
In particular, "each party should be given a fair opportunity to present his case. While a judge surely may exclude irrelevant or inadmissible evidence, or even interrupt an argument or a witness examination that has become repetitious, he should not terminate a hearing without ensuring that he has heard all the relevant and admissible evidence once." Id . at 430-431 (footnote omitted). Unfortunately, it appears that is what happened here. The 209A order is vacated and the matter is remanded for a new hearing.
So ordered .
Vacated and remanded.