Summary
In T.T.L. v. A.T.L., 87 Mass. App. Ct. 1113 (2015), in two companion cases, we affirmed the April 15, 2014, extension of the order and the order denying the husband's motion to terminate and expunge the order.
Summary of this case from T.T.L. v. A.T.L.Opinion
14-P-721 14-P-913
03-30-2015
T.T.L. v. A.T.L. (and a companion case).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
On April 15, 2014, a judge in the District Court extended a G. L. c. 209A abuse prevention order (209A order) against the defendant for a period of six months. On May 23, 2014, a different judge denied the defendant's motion to terminate the 209A order and expunge (motion). He now appeals, pro se, from both the order extending the 209A order and the order denying his motion, arguing legal error in the order's extension, that he was denied an adequate opportunity to be heard, and that the motion judge erroneously ignored "new evidence." In both appeals, we affirm. We also deny his further request that this court direct that the 209A order be expunged from his record.
1. Extension of the order. In T.T.L. v. A.T.L., 85 Mass. App. Ct. 1116 (2014), this court affirmed the issuance of an order denying a prior motion to terminate and expunge the same 209A order as is at issue in this case. In extending the order, the judge here considered the defendant's past sexual abuse of the plaintiff and the plaintiff's expressed continuing fear of the defendant which was such that merely seeing him in the courthouse made her "scared." As he has throughout these proceedings, the defendant denies that he had ever abused the plaintiff, and claims that she had fabricated her claims in order to gain an advantage in divorce proceedings and immigration matters. The judge rejected the defendant's version of events, finding the plaintiff credible.
The plaintiff reported the abuse to the police and sought treatment at a local hospital.
The record is devoid of any documentation to support this claim.
In order to obtain an extension of a 209A order, a plaintiff must prove "by a preponderance of the evidence that an extension of the order is necessary to protect her from the likelihood of 'abuse' as defined by G. L. c. 209A, § 1." Iamele v. Asselin, 444 Mass. 734, 739 (2005). See Callahan v. Callahan, 85 Mass. App. Ct. 369, 372 (2014). Specifically, the question is "whether a plaintiff has a reasonable fear of 'imminent serious physical harm.'" Iamele v. Asselin, supra at 739-740, quoting from G. L. c. 209A, § 1(b). Here, the judge considered the basis for the initial order and the totality of the circumstances in finding that the plaintiff had met her burden of proof. There was no error.
2. Motion to terminate and expunge. Shortly after entry of the order at issue here, the defendant filed a motion to terminate and expunge the 209A order based on what he deemed to be "new evidence." His motion is grounded in his claim that the plaintiff has committed a fraud upon the court. The defendant proffered an affidavit from a neighbor who avers that he observed the plaintiff's aunt coming to the home daily, that he has never observed any abuse, and that he has never seen the plaintiff bathe outside the home with a hose. The defendant also offered to provide telephonic testimony from another corroborating witness, which the judge rejected. After considering the neighbor's affidavit and the positions of the parties, the judge denied the motion.
The plaintiff denied that her aunt came to the home daily, but acknowledged she was there often.
The plaintiff alleged that she was required to bathe with a hose outside of the home. The judge made no findings as to this allegation.
A judge has broad discretion in determining whether to terminate a 209A order. See Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 776-780 (2005). The defendant bears the burden of establishing a significant change in circumstances since entry of the order. MacDonald v. Caruso, 467 Mass. 382, 388 (2014). Here, a mere fifteen days had elapsed from the extension of the order to the filing of the motion. Moreover, the claims raised in the motion are identical to those claims raised previously on appeal and are arguably barred by the doctrine of res judicata. The only new information is the affidavit of the neighbor, which the motion judge was free to reject. There was no error.
The defendant's motion also requested that the record of the 209A orders entered against him be expunged. "[R]ecords of abuse prevention orders are not to be expunged from the Statewide domestic violence registry, Vaccaro v. Vaccaro, 425 Mass. 153, 156 (1997), absent a showing that the order was obtained through the commission of fraud on the court." Silva v. Carmel, 468 Mass. 18, 24-25 (2014). We addressed this issue previously on appeal and affirmed the order denying the defendant's prior motion to expunge. Nothing herein establishes that the defendant was entitled to the requested relief.
On appeal, the defendant requests that this court enter an order expunging the record of the 209A orders entered against him. Without determining whether his request is properly before this court, it is denied.
3. Opportunity to be heard. The defendant contends his constitutional due process rights were violated, a claim that was not raised below and, accordingly, we need not consider. See Doe v. Keller, 57 Mass. App. Ct. 776, 778 n.4 (2003), citing Commonwealth v. Siciliano, 420 Mass. 303, 306 (1995). Notwithstanding, the defendant is not automatically entitled to a hearing on a motion for relief in light of "new evidence." See Knott v. Racicot, 442 Mass. 314, 326 (2004). Here, the judge conducted a nonevidentiary hearing on the defendant's motion wherein he heard from the parties and considered the affidavit of the neighbor in rendering his decision. There was no error.
4. Fees and costs. The plaintiff's request for appellate attorney's fees is allowed, in part. She shall, within fifteen days of the date of the rescript, file with this court and serve on the defendant a motion for attorney's fees and costs incurred only in relation to the defendant's appeal of the order denying his motion to terminate and expunge the 209A order and his request on appeal for expungement. The motion shall be supported by an affidavit detailing such fees, in accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The defendant may, within fifteen days thereafter, file with this court and serve on the plaintiff an opposition to the amount of fees so claimed. The matter will be decided on the papers.
Order dated April 15, 2014, extending abuse prevention order affirmed.
Order denying motion to terminate and expunge affirmed.
By the Court (Vuono, Milkey & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 30, 2015.