Opinion
20-P-464
06-23-2021
T.G. v. R.G.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, R.G., appeals from the extension of an abuse prevention order issued pursuant to G. L. c. 209A, § 3 (209A order). He contends that the procedure followed in issuing the 209A order denied him due process, that the plaintiff, T.G., made false statements during the extension hearing, and that there was insufficient evidence to issue the order. We affirm.
R.G. purports to also appeal from the issuance of the ex parte order. However, not only did he fail to file a notice of appeal from the order, the matter is now moot because "the ex parte order has been superseded by the order after notice." Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 661 (2020), quoting C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 565 (2017).
Background. T.G. and R.G. were once married but divorced in July of 2016. On May 2, 2019, T.G. filed a complaint for a 209A order against R.G. At an ex parte hearing, T.G. informed the judge that R.G. was currently serving time in prison for aggravated rape against her. Following the hearing, the judge issued a temporary 209A order with an expiration date of May 16, 2019. On May 16, 2019, T.G. appeared pro se and R.G. appeared, also pro se, via video conference from his place of confinement, for an extension hearing.
At the extension hearing, T.G. testified that she did not feel safe and was in fear for her life from R.G. She stated that one of R.G.’s friends learned her new address, which she had sought to keep secret from R.G., and had driven by her apartment. She also stated that, though R.G. was incarcerated, he still had the ability to call or write her, despite the fact that he had not attempted to do so since he had been confined. R.G. testified in opposition to the request that he had not received T.G.’s affidavit in support of her complaint and argued that he had an insufficient opportunity to prepare for the hearing. He stated that T.G. had a history of perjuring herself in court, and as a result he wanted to cross-examine her. Instead of allowing R.G. to cross-examine T.G. himself, the judge, acting as an intermediary, asked T.G. the questions R.G. sought to ask. At the conclusion of the hearing, the judge granted the extension of the 209A order for one year to May 15, 2020, and R.G. objected stating that he "was not given an adequate opportunity to present a defense." Thereafter, on September 25, 2020, a permanent 209A order was issued, but that order is not the subject of this appeal.
R.G. attempted to cross-examine T.G. about the friend that had "show[n] up at her apartment," and instead, the judge asked her whether someone had shown up at her apartment and who that individual was. When R.G. attempted to follow up by asking whether the friend had said or done anything while at the apartment, the judge responded, "Sir, I'm going to infer that all [the friend] did was drive by [T.G.’s] apartment." R.G. did not seek to cross-examine T.G. with any additional questions.
R.G. has appealed separately from the issuance of the permanent 209A order.
Discussion. 1. Mootness. We pass over T.G.’s claim that this appeal is moot because a permanent 209A order has since been entered, from which R.G. has appealed. In general, an appeal from the issuance of a 209A order is not rendered moot simply because the order has expired. This is true because "abuse prevention orders may carry collateral consequences following their expiration." Allen v. Allen, 89 Mass. App. Ct. 403, 405 (2016). See Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998) (even though 209A order had expired, because it was recorded in Commonwealth's criminal record system, it could have adverse effects on defendant "in the event of future applications for an order under G. L. c. 209A or in bail proceedings"; accordingly, defendant had "surviving interest in establishing that the orders were not lawfully issued"). See also Frizado v. Frizado, 420 Mass. 592, 593-594 (1995). Our cases have not addressed the mootness of a prior 209A order that has been made permanent, and given our disposition of this appeal, we decline to speculate on the effect that invalidation of the extension order might have on the validity of the permanent order. We therefore address R.G.’s claims on the merits.
T.G.’s motion to dismiss the appeal as moot is accordingly denied.
2. Procedural due process. R.G. first argues that his due process rights were violated because he was not served T.G.’s affidavit submitted in support of her 209A application, and he therefore had no opportunity to review it before the extension hearing. There, however, is no right to service of the affidavit in advance of a hearing with notice. See Flynn v. Warner, 421 Mass. 1002, 1002 (1995) ("There is no statutory or constitutional requirement that a G. L. c. 209A complainant's affidavit be served with the order"). "Whether a defendant's constitutional rights have been violated [in a G. L. c. 209A proceeding] will depend on the fairness of a particular proceeding." Frizado, 420 Mass. at 598. At a hearing after notice, "[f]airness requires ... that the defendant ... know what has been alleged." Guidelines for Judicial Practice: Abuse Prevention Proceedings § 5.01 Commentary (Sept. 2011). Here, that requirement was satisfied by T.G.’s testimony at the hearing, which repeated substantially the same information contained in her affidavit.
Secondly, R.G. argues that he was not afforded a sufficient opportunity to present evidence or to adequately testify at the hearing. The argument is unavailing. While due process indeed "requires that the defendant be given an opportunity to testify and present evidence," C.O. v. M.M., 442 Mass. 648, 656 (2004), R.G. was in fact afforded such an opportunity. The judge did not restrict R.G. from offering evidence or calling witnesses; however, R.G. was not prepared to do so on the date of the hearing. R.G. was given adequate notice of the hearing, and due process did not require the judge to grant a continuance to allow him additional time to prepare, obtain physical evidence, or subpoena witnesses, especially where he moved for a continuance only two days prior to the hearing date, and at the hearing, made no proffer of the evidence or witnesses he wished to present. See Singh v. Capuano, 468 Mass. 328, 331 (2014) ("a judge in a c. 209A proceeding has a measure of discretion regarding the scheduling of hearings, but continuances must not be granted lightly, especially in a c. 209A case"). Furthermore, the judge permitted R.G. to testify at length about his previous relationship with T.G. and her history of perjury. The fact that R.G. appeared at the hearing via video conference in no way deprived him of a "meaningful opportunity to be heard." C.O., supra.
The defendant's motion for a continuance was not included in the record on appeal, nor was his affidavit accompanying the motion.
Third, R.G. argues that the judge impermissibly restricted his ability to cross-examine T.G. While "[a] defendant has a general right to cross-examine witnesses against him[,] [t]here may be circumstances in which the judge properly may deny that right in a G. L. c. 209A hearing." Frizado, 420 Mass. at 597. "[C]ertainly a judge may limit cross-examination for good cause in an exercise of discretion," id., such as "to avoid harassment or intimidation of witnesses, confusion, delay, or other abuses of the proceedings." C.O., 442 Mass. at 658. Here, the judge did not wholly restrict R.G. from cross-examining T.G., but instead acted as an intermediary and asked T.G. the questions that R.G. sought to ask. Given the history of the parties, this was a permissible exercise of the judge's discretion.
T.G. had previously obtained 209A orders against the defendant. The most recent one had expired in 2016, around the time of the defendant's trial for aggravated rape.
3. False statements at hearing. R.G. argues that he was prejudiced by false testimony made by T.G. at the extension hearing. We, however, "accord the credibility determinations of the judge who ‘heard the testimony of the parties ... [and] observed their demeanor,’ the utmost deference" (citation omitted). Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006). If R.G. wishes to demonstrate that the 209A order was issued as a result of fraud on the court, the proper vehicle for him to do so is a motion to vacate, where unlike this court, a judge may consider additional evidence and make findings of fact. See M.C.D. v. D.E.D., 90 Mass. App. Ct. 337, 340 (2016). See also Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 781 (2005) (to vacate 209A order, judge should make findings of fact).
4. Insufficient evidence. Finally, R.G. contends that the evidence at the extension hearing was insufficient to support the one-year extension of the 209A order. We disagree.
"Whether seeking an initial abuse prevention order under G. L. c. 209A or a later extension, the burden is on the plaintiff to establish facts justifying issuance, or continuance, by a preponderance of the evidence." Callahan v. Callahan, 85 Mass. App. Ct. 369, 372 (2014). When the plaintiff seeks an abuse prevention order or an extension "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 because the perpetrator is incarcerated." Id. at 374. "For the same reason, the same rule applies to allegations of sexual abuse under [G. L. c. 209A,] § 1 (c )." Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 187 (2020).
Here, T.G. sought the 209A order after having already been a victim of aggravated rape by R.G. She indicated that she was in fear for her life from R.G. despite his incarceration, and further feared that he would contact her by phone or mail. She also expressed fear because a friend of R.G.’s had recently driven by her home at an address that she had attempted to keep private. As a result, the judge properly concluded that the extension of the 209A order was necessary "to protect [T.G.] from the impact of the violence already inflicted." Callahan, 85 Mass. App. Ct. at 373-374 ("General Laws c. 209A embodies the important public policy of preserving the fundamental right to be protected from the devastating impact of domestic abuse"); Vittone v. Clairmont, 64 Mass. App. Ct. 479, 489 (2005) (some wounds so traumatic that passage of time alone does not mitigate victim's fear of perpetrator).
We need not act upon T.G.’s motion to strike portions of the record appendix, as we have not relied upon any of the disputed materials in deciding the case.
Order entered May 16, 2019, extending G. L. c. 209A order affirmed.