Opinion
14-P-284
11-07-2014
DAWN ROCCAFORTE v. MICHAEL HUSSEY.
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 the denial of his motion to vacate a permanent abuse prevention order. A defendant who makes such a motion bears the burden of proving, in pertinent part, that a significant change in circumstances has occurred since the order issued. MacDonald v. Caruso, 467 Mass. 382, 382-383, 390-391 (2014). This showing must be made by clear and convincing evidence. Id. at 382, 390-391.
Here, the defendant argues that he demonstrated "two significant changes in circumstance [that were] not present at the time [of] the last order," which justify terminating the order. The two changes specified are that he lost his job because of the order and is unable secure another job, and that he is no longer able to participate in recreational activities involving firearms (because of his shooting partner's relocation and because the order prevents him from obtaining a firearm identification card). The collateral consequences of the abuse prevention order on the defendant are not considered to be a change in circumstance that can justify terminating the order. See id. at 392 ("The defendant also asks us to consider the collateral consequences that a defendant may suffer from an abuse prevention order, including his inability to obtain a permit to carry firearms. We decline to do so. Where a defendant has failed to meet his burden to terminate an abuse prevention order, the order shall not be terminated, regardless of how onerous the collateral consequences, because the only relevant issue is the safety of the plaintiff"). As a result, the defendant did not present any evidence that there is a relevant significant change in circumstances that warrants terminating the permanent order. The defendant did not meet his burden. There was no abuse of discretion or error in denying his motion.,
The only other changes in circumstances that the defendant references are the passage of time and the fact that he has abided by the order. The significant change in circumstances must involve more than following the abuse prevention order and the passage of time. These changes alone do not justify terminating a permanent order. MacDonald, 467 Mass. at 388-389 ("The significant change in circumstances must involve more than the mere passage of time, because a judge who issues a permanent order knows that time will pass. Compliance by the defendant with the order is also not sufficient alone to constitute a significant change in circumstances, because a judge who issues a permanent order is entitled to expect that the defendant will comply with the order").
As the defendant did not meet his burden on the first prong of the MacDonald test, we do not address the arguments concerning whether he met his burden under the second prong to show "by clear and convincing evidence that . . . it is no longer equitable for the order to continue because the [plaintiff] no longer has a reasonable fear of imminent serious physical harm." 467 Mass. at 382-383.
The defendant also argues that his due process rights were violated because he was denied an opportunity to cross-examine the plaintiff. This argument lacks merit. The defendant never asked to cross-examine the plaintiff. Both parties were sworn and the judge asked each party questions. The defendant was told that it was his motion and he should tell the judge why he felt she should vacate the order.
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Order denying motion to vacate permanent abuse prevention order affirmed.
By the Court (Kafker, Trainor & Milkey, JJ.), Clerk Entered: November 7, 2014.