Opinion
No. 12–P–764.
2013-03-7
Erin BANKS v. Brian LAVALLE.
By the Court (GRASSO, BROWN & GREEN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order of the West Roxbury Division of the Boston Municipal Court Department entered on February 13, 2012, denying his motion to vacate or modify a previous order making permanent an abuse prevention order issued against him under G.L. c. 209A.
Upon review of the record, and the arguments and authorities presented in the defendant's brief on appeal, we discern no abuse of discretion by the motion judge and affirm the order.
The permanent order entered on September 20, 2008.
On appeal, the defendant does not claim that he did not receive notice of the hearing at which the 209A order was made permanent, but asserts that it was improper for the judge to make the order permanent because the notice he received did not specify that the result of the hearing could include that disposition. The argument rings hollow. Under G.L. c. 209A, § 3, as a matter of the judge's discretion, and assuming that the evidence presented by the plaintiff sufficiently established that her further protection was necessary, the duration of the order, or whether it should be made permanent, was for the judge to decide.
See Jones v. Gallagher, 54 Mass.App.Ct. 883, 889 (2002). Notice of the hearing accordingly encompassed notice that the order could be made permanent. We also note that the motion judge, who also entered the original extension of the 209A order and then subsequently made it permanent, had the benefit of knowing the bases for both actions. Factors taken together in the context of the entire history of the parties' relationship may provide a sufficient basis for the permanent extension of a protective order. See Pike v. Maguire, 47 Mass.App.Ct. 929, 930 (1999); Smith v. Jones, 75 Mass.App.Ct. 540, 544 (2009). Moreover, the record does not include either the plaintiff's original complaint or a transcript of the proceedings concerning the extension hearing; absent a proper record to support his challenge on appeal, the defendant has furnished no basis upon which we may evaluate his claim that the evidentiary basis for the extension was insufficient. See Wooldridge v. Hickey, 45 Mass.App.Ct. 637, 641 (1998).
.General Laws c. 209A, § 3, as amended by St.1990, c. 403, § 3, provides, in relevant part, as follows:
“If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order.”
Finally, we observe that (1) the defendant demonstrated an inability to control his conduct, having violated an existing order previously (of which the judge had knowledge), thus demonstrating a continuing need for the plaintiff's protection; (2) the judge was not required to believe the defendant's affidavit; and (3) even if we were to assume that the defendant was initially without notice of the order's permanency, the judge found that the defendant was given notice of the permanent order in 2008. The defendant did not challenge the permanent order for more than three years thereafter, and when he eventually did challenge the permanency of the order, the defendant offered in his motion and affidavit no reason on the merits to show that it was no longer necessary.
To the extent that the defendant asserts a denial of due process by reason of the denial of his motion without a hearing at which he was present, the claim is misplaced; he is not entitled to a hearing on such a motion.
In the circumstances, we perceive no abuse of discretion by the motion judge.
Order denying motion to vacate or modify abuse prevention order affirmed.