Opinion
21-P-300
03-02-2022
D.R. v. D.C.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Defendant D.C. (father) appeals from the extension of an abuse prevention order entered on December 22, 2020, directing him not to contact and to stay away from plaintiff D.R. (mother) and her three children. We affirm.
1. Finding that the mother had a reasonable fear of imminent physical harm. The requirements for obtaining a c. 209A order are well established. See G. L. c. 209A, § 3 ; E.C.O. v. Compton, 464 Mass. 558, 561-563 (2013) ; G.B. v. C.A., 94 Mass. App. Ct. 389, 393 (2018). "We review the issuance of an order pursuant to G. L. c. 209A for an abuse of discretion or other error of law." E.C.O., supra at 561-562.
To obtain a c. 209A order under the second definition of abuse, "placing another in fear of imminent serious physical harm," G. L. c. 209A, § 1 (b ), the applicant "must show both that she is currently in fear of imminent serious physical harm, and that her fear is reasonable." Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 186 (2020). The mother's testimony, if believed, was sufficient to establish both. The father's principal contention is that the judge erred in crediting the mother's testimony -- because it was inconsistent, lacked sufficient detail, and was not corroborated by additional witnesses or documentary evidence -- and in failing to credit the father's witnesses who testified that he was at work when, according to the mother, he was threatening and stalking her.
As just one example, the mother testified,
"He told me that he works right down the street and he has no problem coming into my house and slitting my throat. Also has told me that he has no problem beating me up. He's beaten me up before.... I'm every day in fear of my life of this man."
The father's challenge fails as a matter of law and as a matter of fact. As a matter of law, the judge has wide discretion in determining which witnesses to believe. See E.C.O., 464 Mass. at 562, quoting Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006) ("We accord the credibility determinations of the judge who ‘heard the testimony of the parties ... [and] observed their demeanor’ ... the utmost deference"). As a matter of fact, the judge did account for the deficiencies the father raises on appeal. As the mother was testifying, the judge asked her why she had not produced copies of text and Snapchat messages. In reciting her findings, the judge stated that while she did find the father's witnesses credible as to the father's whereabouts on days he was working, their testimony did not address his ability to send threatening communications. The judge also noted that despite the absence of documentary evidence, she found the mother's claims of abuse "extremely credible," and the father's denials less so. The judge did not make "a clear error of judgment in weighing the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives." G.B., 94 Mass. App. Ct. at 393, quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
2. Inclusion of the children in the protective order. We discern no error of law or abuse of discretion in the judge's decision to include the parties’ two children and the mother's other child in the no-contact order. The mother testified that the children were afraid of the father. They were present for one of the incidents in which the father stalked the mother on foot and in his truck, causing the mother to hide out with the children in a nearby bodega; they feared he was going to kidnap them. The parties’ older daughter testified that she saw the father standing outside their windows on Thanksgiving and feared he was going to "snatch" her from her mother. On another occasion, the daughter witnessed the father yelling at the mother, swearing at her, and calling her names; the daughter was so scared she wet her pants. The evidence thus provided independent support for incorporating the children in the order. See Smith v. Joyce, 421 Mass. 520, 523 (1995) ; Schechter v. Schechter, 88 Mass. App. Ct. 239, 252-253 (2015).
Any procedural missteps asserted in the father's brief do not warrant vacating the order. In the affidavit filed with the original complaint, the mother wrote, "I fear for mine and my daughters[’] saf[e]ty." Although the mother may not have filed an "Affidavit Disclosing Care or Custody Proceedings" in compliance with the trial court rules, the judge made a note of the Department of Children and Families’ involvement on the record. Thus, the purpose of the rule, which is for the administrative convenience of the trial court in situations in which more than one department may have jurisdiction over issues that affect child custody, was satisfied.
It does not appear that the father, who was equally bound by the trial court rules to file such an affidavit, did so either.
Likewise, the absence of written findings does not invalidate the c. 209A order. Again, the purpose of written findings is to ensure that the Probate and Family Court, which has superior jurisdiction over child custody and visitation, is aware of issues of domestic violence. See Guidelines for Judicial Practice: Abuse Prevention Proceedings § 6:00 commentary (Oct. 2021) (Guidelines) ("Such findings will offer guidance to the Probate and Family Court in any later proceeding relating to custody of or parenting time with the minor child[ren]"). The no-contact order did not interfere with any existing visitation order, and if the father were to seek visitation, any subsequent order issued in the care and protection proceedings would supersede the prior c. 209A order. See Smith, 421 Mass. at 524 ; G. L. c. 209A, § 3 ; Guidelines § 13:00.
3. Motion to obtain GPS data. On the morning of the two-party hearing, the father's counsel apparently e-mailed a motion to the clerk (it was never formally filed or docketed) asking "the Court [to] obtain a copy of his GPS records on file with Probation." The father asserted in the motion that the records were "voluntary and not court- or probation-required," that he requested them in an unrelated (and unidentified) matter, and that a court "request" was necessary to obtain them. He asserted that he expected the records to be exculpatory, presumably because, he maintained, the GPS records would prove that he was not in the mother's proximity at the times she alleged he was.
After the mother, her two witnesses, the father's three witnesses, and the father had testified, father's counsel asked the judge to act on the motion. (One of the father's witnesses alluded to the father having been fitted with a GPS device; the father himself did not mention it.) The judge commented that the father should have raised the issue before the hearing had started, and at this point it was too late to consider. The father now contends that the judge's failure to address his motion deprived him of a meaningful opportunity to be heard and violated his due process rights.
The judge explained, "That's something you needed to address before the hearing started.... And that's why I asked was there anything and you said no that we're going to start the hearing." Although not included in the transcript of the hearing, which was conducted by video conference, the judge may have been referring to prehearing matters that were discussed before the witnesses were sworn.
The father was afforded all the process he was due. He was present at the hearing and represented by counsel. He was able to cross-examine the mother and the mother's witnesses. He was permitted to testify and to present three witnesses of his own. See C.O. v. M.M., 442 Mass. 648, 656 (2004) ("Due process requires that the defendant be given an opportunity to testify and present evidence"); Guidelines § 1:03 commentary ("Generally, the testimony of the parties and any witnesses will provide an adequate basis for the adjudication of domestic abuse cases and, when warranted, the issuance of abuse prevention orders"). Discovery in c. 209A cases is in the judge's discretion. See Beninati v. Beninati, 18 Mass. App. Ct. 529, 534 (1984) (management of discovery and "[w]hether a case shall be continued or proceed to trial" within trial judge's discretion); Guidelines § 1:03.
The judge did not abuse her discretion by declining to entertain the father's discovery motion. The father did not mention his voluntary GPS monitoring during his testimony, and he failed to ask the judge to address the motion until after all the witnesses had testified. The GPS records would not have been conclusive unless they showed that the father was nowhere in the mother's vicinity at any time from November 2020 to the date of the two-party hearing, and, in any event, the father did not need to be in the mother's presence to commit many of the abusive acts that the mother described and the judge credited. Finally, the father could have, but did not, attempt to request relief from the judgment. See Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 775-776 (2005).
December 22, 2020, extension order affirmed.