Opinion
10-P-2261
04-04-2012
K.M. v. M.A.R.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from several orders denying relief from an abuse prevention order initially entered on February 2, 2010, and thereafter modified on February 12, 2010 (initial order). By means of a separate notice of appeal, initially entered on our docket under docket number 11-P-743, but thereafter consolidated with the present appeal, the defendant also appeals from an order by a judge of the District Court entered on February 8, 2011, which made the initial order permanent (permanent order). We discern no grounds for relief, and affirm.
1. Motions for relief from initial order. The defendant did not appeal from the initial order. In substance, all of his subsequent motions (beginning on July 26, 2010, and continuing through November, 2010) are properly characterized as motions for relief from that order pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), but he may not use those motions as substitutes for appeal. See Muir v. Hall, 37 Mass. App. Ct. 38, 41 (1994); Pielech v. Massasoit Greyhound, Inc., 47 Mass. App. Ct. 322, 327 (1999). In any event, the motions themselves (to the extent that their limited reproduction admits of intelligent review) lack merit.
2. Permanent order. In his supplemental brief, the defendant, who is indigent, first argues that the first judge erred in denying his motion for 'indigent summonses.' This claim is governed by G. L. c. 261, § 27D. The matter is not properly before this court. The defendant failed to appeal to the Appellate Division; in fact, he filed no notice of appeal respecting this order at all. He does not argue that he did not receive notice of the ruling on the motion (which, plainly, he did receive at some point). At best, he argues in one sentence that the judge 'made no finding as to why he would deny such a basic Funda[]mental Right,' but a judge is not required to file the requisite findings under G. L. c. 261, §§ 27C(4) or 27D, where, as here, the aggrieved party failed to appeal under § 27D. See Commonwealth v. Lockley, 381 Mass. 156, 159 n.1 (1980). In any event, in context, the defendant appears to make this argument respecting the trial judge, not the motion judge.
Section 27D, as amended by St. 2004, c. 252, § 20, provides, in relevant part:
'In any case where the court denies a request for waiver, substitution or payment by the commonwealth of fees and costs, pursuant to section twenty-seven C or any other provision of law, the applicant may take an appeal as hereafter provided. . . . If the matter arises in the district court . . . department [], the appeal shall be to the appellate division. Upon being notified of the denial the applicant shall also be advised of his right of appeal, and he shall have seven days thereafter to file a notice of appeal with the clerk or register. Upon receipt of notice of appeal timely filed the clerk or register shall forthwith notify the judge or justice, who shall within three days set forth his written findings and reasons as provided in paragraph (4) of section twenty-seven C.'
Next, the defendant complains about the trial judge's limitation of his attempts to cross-examine the plaintiff to show bias or lack of credibility. While cross-examination of a witness to show 'bias or interest is a matter of right' and a judge has no discretion to deny it, see Commonwealth v. Perkins, 39 Mass. App. Ct. 577, 581 (1995), the right to cross-examine for bias is not impaired by a judge's curbing of the inquiry if the matter has been sufficiently aired (as it was here), and the judge may exclude a specific inquiry where, as here, there has been extensive inquiry. Commonwealth v. Smiledge, 419 Mass. 156, 159 (1994). Moreover, a judge may exclude irrelevant or redundant evidence sua sponte, Boston v. United States Gypsum Co., 37 Mass. App. Ct. 253, 261 (1994), and the defendant's questioning of the plaintiff about irrelevant, ancillary matters solely for purposes of challenging her credibility, a matter he had thoroughly explored, was unnecessary.
The defendant belatedly accuses the judge of bias, but did not move to recuse the judge below. See Poly v. Moylan, 423 Mass. 141, 150 (1996), cert. denied, 519 U.S. 1114 (1997) (failure to object or move for mistrial on ground of judicial bias taken into account when viewing the record); Matter of a Care & Protection Summons, 437 Mass. 224, 239 (2002) (belated request 'suggests a tactical decision in the face of an adverse ruling').
The defendant next argues that the plaintiff's proof was insufficient to justify extension of the order, but he does not argue in any way that it was error to make the order permanent. His best argument is that he is and is likely to be incarcerated for quite some time, and thus there was no reasonable apprehension of imminent serious physical harm. See Jordan v. of the Westfield Div. of the Dist. Ct. Dept., 425 Mass. 1016, 1017 (1997). However, the judge had before him (i) an allegedly 'threatening' letter written by the defendant, and (ii) the plaintiff's testimony respecting her concern about the defendant's contact with third parties outside jail. The judge found and ruled that: '[b]ased on the evidence I heard I'm going to issue a permanent restraining order and that's because of the defendant's record, because of the history of transgressions, because of the affidavit filed, because of the witness'[s] testimony of concern about third party contact.' Except for the 'concern about third party contact,' which, as noted is supported by the record, the defendant does not directly challenge those findings. On the whole, there was enough evidence before the judge to support extension of the order. [FN3]
We again note that the defendant does not challenge that aspect of the order making it permanent.
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Finally, the defendant argues that the judge erred in denying his motion to modify the order regarding the days he is entitled to call his minor son. The hearing judge had a wide range of discretion in fashioning such details, and we discern no basis to disturb the permanent order as issued by the judge.
The orders denying the defendant relief from the initial order and from the permanent order are affirmed.
So ordered.
By the Court (Cypher, Green & Trainor, JJ.), Clerk