Opinion
21-P-522
05-18-2022
E.N. & another[1] v. V.N.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
The panelists are listed in order of seniority.
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
The defendant, V.N. (father), appeals from the extension of abuse prevention orders entered on May 6, 2020, directing him not to contact and to stay away from plaintiffs E.N. (mother) and V.E.N. (adult daughter). We affirm.
1. The mother. The requirements for extending a G. L. c. 209A order are well established. See G. L. c. 209A, § 3; E.C.O. v. Compton, 464 Mass. 558, 561-563 (2013); Iamele v. Asselin, 444 Mass. 734, 739-740 (2005); G.B. v. C.A., 94 Mass.App.Ct. 389, 393 (2018). We review the issuance or extension of a c. 209A order "for an abuse of discretion or other error of law." E.C.0., supra at 561-562.
When a plaintiff seeks an extension of an abuse prevention order "based on having already been subject to physical harm," the "'abuse' is the physical harm caused, and a judge may reasonably conclude that there is a continued need for the order because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent." Callahan v. Callahan, 85 Mass.App.Ct. 369, 374 (2014). In making this assessment, the judge "must consider the totality of the parties' relationship," including, inter alia, "the defendant's violations of protective orders, ongoing child custody or other litigation that engenders or is likely to engender hostility, [and] the parties' demeanor in court." Id., quoting Iamele, 444 Mass. at 740.
The mother applied for and was granted the initial order in June 2018 following an extended and heated verbal argument with the father that turned violent. Specifically, she alleged that the father arrived at her house uninvited, started to argue with the adult daughter, and was "getting in her face." As the mother attempted to call 911, the father "grabbed [the mother's] hands, crossed [her] arms, . . . forced [her] phone out of [her] hands[, ] and threw it on the floor to break [it]." He then pushed her against the wall with his chest and head and "flicked [her] face." According to the mother's testimony at the extension hearing, when the police confronted the father about this incident, "he assaulted a police officer, was tazed [sic] a couple of times, and was arrested and put in jail overnight."
Although the father had never caused the mother physical harm during their multi-decade marriage prior to this incident, he had threatened harm and, at least three or four times, punched or kicked holes in the walls and doors of their home. In addition, after the issuance of the initial order he served time in jail for multiple violations of the order, multiple violations of probation, and assault and battery on a family or household member. At the time of the extension hearing, the mother remained "afraid" of the father because she was "not sure what he's capable of" and did not "know what he'll do."
Contrary to the father's argument, the June 2018 incident was a proper basis for extending the order even though it was the only example of physical harm against the mother and occurred two years before the extension order. We have affirmed the issuance of c. 209A orders based on incidents that occurred years earlier. See Yahna Y. v. Sylvester S., 97 Mass.App.Ct. 184, 185, 187 (2020); Vittone v. Clairmont, 64 Mass.App.Ct. 479, 480, 489 (2005). Even though the father may have complied with the order for some time prior to the extension, "obedience alone is not a ground for refusing an extension." Iamele, 444 Mass. at 738. In light of the father's past physical abuse of the mother, the parties' relationship, and the father's recent criminal history, including multiple violations of the initial order, the judge could reasonably conclude that the mother was still suffering from past abuse. See M.B. v. J.B., 86 Mass.App.Ct. 108, 117 (2014); Callahan, 85 Mass.App.Ct. at 375.
2. The adult daughter. Although the father contends that the evidence was insufficient to support the extension of the adult daughter's abuse prevention order, the hearing transcript that he provided to this court omits nearly all her testimony (approximately seven minutes) in support of the extension. The father argues that we should excuse him from his burden to supply an adequate appellate record, see Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019), because the extended order's prohibition on contacting the adult daughter prevented the father's attorney from reconstructing the hearing transcript. While we acknowledge counsel's potential predicament, the record is bereft of any indication that he made any effort to reconstruct the transcript, such as asking the judge who issued the extension order for permission to contact the plaintiffs for the limited purpose of reconstructing the record or applying directly to the judge to settle the record. See Mass. R. A. P. 8 (c), (e) (3), as appearing in 481 Mass. 1611 (2019). In any event, even if the father is not at fault, the record is still insufficient for him to prevail on appeal. Because the father failed to carry his burden "to furnish a record that supports his claims on appeal," Hasouris v. Sorour, 92 Mass.App.Ct. 607, 610 n.4 (2018), quoting Arch Med. Assocs., Inc. v. Bartlett Health Enters., Inc., 32 Mass.App.Ct. 404, 406 (1992), we are unable to conclude that the judge abused her discretion in extending the order.
Extension orders dated May 6, 2020, affirmed.
The plaintiffs' request for attorney's fees and costs is denied.