Opinion
16–P–929
05-10-2017
N.J. v. B.J.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court judge issued an abuse prevention order against the defendant pursuant to G. L. c. 209A. On appeal, the defendant argues that the evidence presented was insufficient to support the issuance of the order. We affirm.
Background. Except as noted, the facts before us appear to be uncontested. The defendant and the plaintiff's mother were married, and it is evident even on the limited record before us that they had a difficult marriage. The plaintiff was born in 1997 (according to the defendant's brief, shortly before the couple was married), although it came out later that the plaintiff is not the defendant's biological son. The plaintiff and defendant had virtually no contact after the plaintiff was approximately eight years old, and at least for some of the intervening years, the defendant was incarcerated.
In April of 2014, the defendant penned a lengthy and highly emotive letter to the plaintiff. In the letter the defendant explained that he had just received an additional sentence for a new conviction, and he expressed his belief that "it seems like I am never coming home." Further details of the letter are reserved for later discussion.
Although it is not clear whether the letter was ever formally admitted as an exhibit, the defendant made repeated reference to it, and the record indicates that the judge read it.
Several months later, the plaintiff's mother obtained an abuse prevention order against the defendant, prohibiting him from having any contact with her and her two minor children (including the plaintiff) for five years. The specific evidentiary basis for that order is not before us.
In November of 2015, after the plaintiff had reached his majority, the defendant moved to modify the then-existing order to remove the plaintiff from its coverage. In an affidavit that the defendant submitted in support of that motion, he alleged that the plaintiff "wishes to establish communication with" him. This proved not to be true. At a hearing on that motion, the judge specifically asked the plaintiff whether he wanted contact with the defendant, to which the plaintiff responded, "None whatsoever."
To address the procedural setting of the dispute, the judge directed the plaintiff to fill out an application for an abuse prevention order in his own right, with a hearing to be held later that day. The plaintiff followed the judge's instructions, and an evidentiary hearing was held. The judge issued the requested order, albeit for a term of approximately five years, not the permanent term the plaintiff had requested. It is the appeal of this order that is before us.
The court opened a new docket on the plaintiff's request for an abuse prevention order in his own right. The defendant's motion to modify the previously issued order was filed in the earlier proceeding. Although the docket of that case was not included in the record before us, we have taken judicial notice of it. See Reliance Ins. Co. v. Boston, 71 Mass. App. Ct. 550, 555 (2008) (in evaluating motion brought pursuant to Mass.R.Civ.P.12 [b][6], 365 Mass. 754 [1974], court may take judicial notice of court records in related proceedings). After issuing the new abuse prevention order, the judge excised the plaintiff's name from the earlier order.
We now turn to the evidentiary record. In support of his application for an abuse prevention order, the plaintiff submitted an affidavit that alleged the following:
"The last time that I had contact with [the defendant] was 10 years ago when I received a phone call where he told me to evacuate my home seeing as he threatened to ‘blow it up’ with my mother and new born sister. My family has lived under constant fear for a decade and I am no exception. [The defendant] has relentlessly threatened my family and I do not wish for it to continue, therefore I am requesting a life long restraining order. I am off to college in less than a year and do not want this to continue as I am attempting to become the successful and happy person that I strive to be."
The plaintiff affirmed these statements as true at the hearing. He also stated that he was frightened by the defendant. In response to the judge's request for examples of what made him frightened beyond what was in his affidavit, the plaintiff cited "my mother crying constantly," and the defendant's sending letters saying "awful things" about the family. When the judge pressed him on whether the defendant had ever hit him as a child, the plaintiff initially said, "Well, like a normal parent would do," adding, "Yes, but nothing that was awful."
In the face of the defendant's claiming that he never had harmed or threatened any member of his family, the judge expressly credited the plaintiff's testimony. She also noted her own familiarity with the historical relationship between the mother and the defendant based on her involvement in past proceedings. She characterized that relationship as "very violent and threatening."
Discussion. We begin by addressing the procedural posture of this case. As of December 29, 2015, the date the judge heard this matter, the plaintiff was the beneficiary of a five-year abuse prevention order, albeit one that his mother had obtained on his behalf. The defendant has not pressed an appeal of that order. It was the defendant, however, who brought that matter forward by seeking to have the plaintiff removed from the scope of that order. The defendant was within his rights to seek termination of the existing order as to the plaintiff, but in that context he bore the burden of proving that the plaintiff no longer had a fear of imminent serious physical harm and that significant changed circumstances made enforcement of the order no longer equitable. See MacDonald v. Caruso, 467 Mass. 382, 387, 390–391 (2014). In such a proceeding, the defendant could not challenge the original basis of the order that he seeks to modify. Ibid.
A notice of appeal was filed on October 22, 2014, but there is no indication that this was pursued further.
Where a defendant is seeking to terminate prematurely either an initial order after notice issued for one year, or a permanent extension order, he must produce clear and convincing evidence to meet the applicable test. See MacDonald v. Caruso, supra at 389–391. Because neither of those situations apply here, we assume arguendo that an ordinary preponderance of the evidence standard applied.
If the judge concluded that the defendant had not met his burden, she could have left the plaintiff on the existing order. As noted, however, she decided sua sponte that it would be proper to have the plaintiff initiate his own request for an abuse prevention order on a new docket. Without resolving whether doing so necessarily was proper, we conclude that this did not transform the dispute into one in which the plaintiff now bore the same burden of proof that an original applicant in a c. 209A proceeding would. Put differently, under the circumstances of this case, the judge's decision regarding whether to issue a "new" abuse prevention order with regard to the plaintiff, was the functional equivalent of deciding whether to accept the defendant's request to have the plaintiff removed from the scope of the existing order. Cf. Vittone v. Clairmont, 64 Mass. App. Ct. 479, 485–486 & n.7 (2005) (treating plaintiff's request for new abuse prevention order as extension where plaintiff had let earlier abuse prevention order lapse while defendant was incarcerated). We will treat it as such.
The principal change in circumstances that the defendant proffered for removing the plaintiff from the scope of the existing order was that the plaintiff had turned eighteen and wanted to have contact with the defendant. The plaintiff's unequivocal testimony demonstrated that this was not true, and the defendant has now abandoned any such argument. Instead, he argues that an abuse prevention order protecting the plaintiff is not justified because there is no evidence that he ever harmed or threatened the plaintiff, his only contact with the plaintiff in the decade before the hearing was a letter that expressed parental love for the plaintiff, and the plaintiff in any event has no reason to fear imminent harm from him because he was incarcerated.
On a writ of habeas corpus, the defendant attended the December 29, 2015, hearing in person and testified. He remained incarcerated at the time of the scheduled oral argument in the current appeal, and was offered the opportunity to participate in a telephone conference. He declined that offer and instead moved to submit the case on his brief. We allowed that motion.
The judge expressly found the plaintiff credible (including as to his fear of the defendant), and she implicitly discredited the defendant's claims to the contrary. She thus accepted that the defendant had once telephoned the plaintiff, then a young boy, to communicate his intent to blow up the plaintiff's home with the plaintiff's mother and sister inside. That this call nominally threatened physical violence against other family members (not the plaintiff) is not dispositive. Compare Vittone v. Clairmont, supra at 487–488 (affirming allowance of permanent abuse prevention order in part based on abuse directed at other family members). Indeed, the defendant's apparent lack of appreciation for the level of trauma that such a phone call could cause a young child is itself disturbing.
Nor does the mere passage of time demonstrate that an abuse prevention order is no longer appropriate. See MacDonald v. Caruso, 467 Mass. at 388–389. See also Vittone v. Clairmont, supra at 489 ("The infliction of some wounds may be so traumatic that the passage of time alone does not mitigate the victim's fear of the perpetrator"). Moreover, we discern no merit in the defendant's suggestions that his 2014 letter to the plaintiff shows that an abuse prevention order is inappropriate. Although the letter nominally expresses parental affection for the plaintiff, it also includes some disturbing aspects. For example, the letter refers to "scientific[ ] pro[of]" that the person who prosecuted the defendant is "a devil." In addition, the defendant's insistence that the letter merely was seeking to "close out" his relationship with the plaintiff is belied by his evident desire to be able to continue contacting the plaintiff (despite the clarity of the plaintiff's expressed desire not to have any such contact).
For example, the defendant stated: "I know that you have been introduced to your real father and probably do not need me but I felt that you and I need to close our relationship. I just hope that you keep me in your heart and mind and do not let anyone tarnish my name."
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That leaves the fact that the defendant was incarcerated at the time of the December 29, 2015, hearing. That may provide some measure of protection to the plaintiff, but it does not, by itself, mean that an order was unwarranted. Compare Jordan v. Clerk of the Westfield Div. of the Dist. Ct. Dept., 425 Mass. 1016, 1017 (1997), with Callahan v. Callahan, 85 Mass. App. Ct. 369, 373–376 (2014). Moreover, where the initial abuse prevention order is based on actual violence (as the judge's statements indicated it was), then whether the plaintiff currently has a reasonable fear of imminent physical harm is immaterial. See Callahan v. Callahan, supra (affirming extension of abuse prevention order against incarcerated defendant who had committed physical abuse against plaintiff where resumption of contact would interfere with plaintiff's "sense of security"). Here, the defendant seeks to resume the very practice (writing to the plaintiff from prison) that the judge found had caused the plaintiff distress. Even if the plaintiff had not himself been the subject of physical abuse (at least, "nothing that was awful"), the trauma inflicted on a young child of the type at issue here "may cause wounds that produce long-lasting fear in the victim without new incitements." Id. at 377.
In sum, we discern no error in the judge's issuing the December 29, 2015, abuse prevention order in order to continue in place the protections that the plaintiff had enjoyed under the prior abuse prevention order that his mother had obtained.
Order dated December 29, 2015, affirmed.