Opinion
21-P-736
10-12-2022
S.Y.C. v. Y.Q.C.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Y.Q.C., appeals from the denial of his emergency motion to reconsider and modify a G. L. c. 209A abuse prevention order entered against him in the District Court. He contends that the judge erred in allowing the abuse prevention order to issue because the plaintiff failed to demonstrate that she reasonably feared imminent harm. We affirm.
The plaintiff did not file a brief in this Court.
Background.
The parties were married in 2011 and have two children together. The plaintiff alleged in her affidavit that from approximately 2016 into 2021, she called the police multiple times to report incidents. She then alleged that the defendant had threatened and abused her on multiple occasions. Stripped of details, she asserted, inter alia, that he had threatened her with a knife, verbally abused her, neglected the children, and refused to allow her access to their residence.
On June 22, 2021, the plaintiff sought and obtained an ex parte abuse prevention order against the defendant. On July 7, 2021, following a hearing attended by both parties, a judge extended the order for one year. On July 23, 2021, the defendant filed an "emergency motion to modify abuse prevention order" (motion to modify) seeking, inter alia, a modification allowing him to move back into the residence and permitting him visitation with the children. On July 28, 2021, the judge denied the motion to modify without prejudice, specifying that if she received confirmation that the plaintiff and children had "relocated" away from the residence, she would consider amending the order to permit the defendant to return to the residence. On July 30, 2021, the defendant filed a second "emergency ex parte motion to reconsider and modify the abuse prevention order" (second motion to modify). That same day, the judge denied the second motion to modify. The defendant now appeals from the denial of that motion.
Discussion. The defendant contends that the judge improperly allowed the abuse prevention order to issue because "there was no immediate physical danger to the plaintiff" alleged in the plaintiff's affidavit filed in support of her complaint. The argument is unavailing for the reasons delineated below.
To the extent that the defendant purports to challenge the ex parte abuse prevention order, our review is limited to the subsequent extension of the order after a hearing with notice. C.R.S. v. J.M.S., 92 Mass.App.Ct. 561, 563 (2017).
The defendant advises in his brief that on August 17, 2021, the judge conducted a hearing on a third motion to modify the abuse prevention order, and subsequently allowed the motion to permit the defendant to return to the residence. Although the defendant appears to have received the relief that he sought in his second motion to modify -- which is the subject of the notice of appeal as discussed infra -- we will assume without deciding that the issue is not moot. But see Quinn v. Gjoni, 89 Mass.App.Ct. 408, 412-414 (2016); Allen v. Allen, 89 Mass.App.Ct. 403, 406 (2016).
First, the defendant appears to challenge the issuance of the abuse prevention order itself. However, he did not appeal from the order allowing the abuse prevention order to issue. Instead, the defendant's notice of appeal specifies that he appeals only from the order denying the second motion to modify. That second motion to modify concerned the defendant's request to "modify" the abuse prevention order so that he could move back into the residence. Indeed, the second motion to modify states at the outset that the defendant moved the court to "reconsider that [o]rder of July 28, and modify the [abuse prevention] order issued on July 7, 2021, based on the new evidence submitted herein ..." (emphasis added). Furthermore, the second motion to modify concludes with the request that the defendant "be allowed to move back into the [residence] immediately to prevent the defendant from further being injured."
In civil cases, the notice of appeal must specifically "designate the judgment, decree, adjudication, order, or part thereof, appealed from." Mass. R. A. P. 3 (c) (1), as appearing in 481 Mass. 1603 (2019); Yanolis v. Yanolis, 402 Mass. 470, 472-73 (1988) (appellant's duty to designate the portion or portions of order being appealed); Robinson v. Boston, 71 Mass.App.Ct. 765, 771 (2008). Here, where the defendant appealed only from the denial of the second motion to modify, but purports to challenge the basis for issuing the abuse protection order, "the validity of that ruling is not properly before this court and will not be considered on appeal." Siles v. Travenol Labs., Inc., 13 Mass.App.Ct. 354, 354 n.l (1982).
Even assuming that the challenge to the abuse prevention order is properly before us, the defendant's argument still fails. "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. v. Compton, 464 Mass. 558, 561-562 (2013) . At issue here is whether the plaintiff was in "fear of imminent serious physical harm." G. L. c. 209A, § 1. See Wooldridge v. Hickey, 45 Mass.App.Ct. 637, 639 (1998) ("The judge must focus on whether serious physical harm is imminent"). As such, "we consider whether 'the actions and words of the defendant placed [the plaintiff] in reasonable apprehension that physical force might be used against her.'" Carroll v. Kartell, 56 Mass.App.Ct. 83, 86 (2002), quoting Commonwealth v. Robicheau, 421 Mass. 176, 181 (1995). See Smith v. Jones, 75 Mass.App.Ct. 540, 543 (2009) ("reasonable fear of imminent serious physical harm is to be determined by an objective standard" [emphasis in original]).
Here, we cannot review the basis for the order because the defendant has failed to provide us with a copy of the transcript of any of the hearing held in the District Court. See Mass. R. A. P. 8 (a), as appearing in 481 Mass. 1611 (2019); Cameron v. Carelli, 39 Mass.App.Ct. 81, 84 (1995) (unable to address issue where appellant failed to provide adequate transcript as required). Without the transcript of the evidence that was the basis for the order, we have no way of determining whether that evidence was sufficient.
Even if we took the plaintiff's affidavit as representative of the evidence, it shows that the plaintiff alleged that the defendant had threatened her with a knife, threatened her on multiple occasions, verbally abused her, and refused to allow her into the home to care for the children. On that evidence, we could not say that the judge abused her discretion in allowing the order to enter. See M.B. v. J.B., 86 Mass.App.Ct. 108, 117 (2014) ("The purpose of a c. 209A order is to protect a plaintiff from the likelihood of abuse. ... A plaintiff need not wait until an assault occurs to seek protection"). See also L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Moreover, "[t]he judge had the parties before [her] and was in a position to observe their demeanor." Vittone v. Clairmont, 64 Mass.App.Ct. 479, 487 (2005). Considering this evidence in the context of the circumstances at the time of the extension hearing, the judge was within her discretion to conclude that the plaintiff had met her burden of showing "by a preponderance of the evidence that [the] extension of the order [was] necessary to protect her from the likelihood of 'abuse' as defined in G. L. c. 209A, § 1." Iamele v. Asselin, 444 Mass. 734, 739, 741 (2005). See Carroll, 56 Mass.App.Ct. at 86.
Finally, the defendant insists that the judge's findings are incorrect and unsupported by the record. He further contends that the plaintiff's true motivation was not to seek protection but to coerce the defendant to pay her $2,000. As discussed, the absence of a transcript hampers our review. That notwithstanding, as noted by the judge, "[a]ssessments of credibility are left to the judge as the finder of fact." In this regard, the judge explicitly stated that she found the plaintiff's testimony at the July 7, 2021 hearing to be "credible," and "did not find the defendant's . . . testimony that the plaintiff was lying to be credible." See Commonwealth v. Lao, 443 Mass. 770, 779 (2005) ("[i]f, from the evidence, conflicting inferences are possible, it is for the [factfinder] to determine where the truth lies, for the weight and credibility of the evidence is wholly within [its] province"). On the limited record before us, we discern no clear error in the judge's findings and no abuse of discretion in her ultimate determination.
Order entered on July 30, 2021 denying defendant's emergency motion to reconsider and modify abuse prevention order, affirmed.
By the Court
Neyman, Ditkoff & Hershfang, JJ.
The panelists are listed in order of seniority.