Opinion
20-P-174
06-01-2021
A.O. v. Y.A.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The parties have been involved in a lengthy litigation in the Probate and Family Court concerning the custody of their minor child. In this appeal the mother of the child challenges the dismissal of her complaint for a G. L. c. 209A order (209A order) that she sought on behalf of the child against the child's father. We affirm.
Background. On December 4, 2019, the mother filed a complaint in the District Court seeking a 209A order on behalf of the child. A temporary 209A order issued ex parte and was scheduled to expire the next day. Also on December 4, 2019, the mother filed a motion in the Probate and Family Court custody case to suspend the father's parenting time and decision-making responsibility concerning the child.
At 9 A.M. on December 5, 2019, a Probate and Family Court judge held an ex parte emergency hearing on the mother's motion to suspend the father's parenting time and decision-making responsibility. According to the mother, after that hearing, she returned to the District Court to request an extension of the temporary 209A order, but was told to make the request in the Probate and Family Court. Later that day the mother refiled her G. L. c. 209A complaint in the Probate and Family Court.
The Probate and Family Court docket reflects that no action was taken on this motion because the judge found that there was no emergency.
At 3:47 P.M. on December 5, 2019, the same Probate and Family Court judge who presided over the 9 A.M. hearing held a hearing on the mother's complaint. After observing that he had considered "the same allegations" and "the same information" at the 9 A.M. hearing, the judge denied the mother's request to extend the temporary 209A order. The judge stated as his reason that he "found [the] mother's claims to be not credible."
Discussion. "Whether seeking the issuance of an initial [209A] order or a later extension of that order, ‘[t]he burden is on the complainant to establish facts justifying [its] issuance and continuance.’ " Iamele v. Asselin, 444 Mass. 734, 736 (2005), quoting Frizado v. Frizado, 420 Mass. 592, 596 (1995). The complainant must meet this burden by a preponderance of the evidence. See Iamale, supra. We review a judge's decision whether to issue a 209A order for an abuse of discretion or error of law. See E.C.O. v. Compton, 464 Mass. 558, 561-562 (2013).
We are unpersuaded by the father's contention that this appeal was rendered moot by a subsequent custody order issued by the Probate and Family Court.
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Here, the judge's decision to deny the mother's request to extend the temporary 209A order was predicated on his assessment of her credibility -- a determination to which we accord "the utmost deference." E.C.O., 464 Mass. at 562, quoting Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006). In arguing that we should nonetheless overturn the decision, the mother claims that the judge erred by failing to consider the totality of the circumstances of the parties' relationship. See Iamele, 444 Mass. at 740. Specifically, the mother claims that the judge did not consider that, two months before the hearing, the mother was successful in obtaining a 209A order on her own behalf against the father. This claim is unsupported by the record, as the judge acknowledged at the hearing that the mother "obtained a restraining order ex-parte on October 31 in the Dedham District Court." In any event, contrary to the mother's suggestion, that she obtained a 209A order on her own behalf does not answer whether the child is suffering from abuse at the hands of the father, which was the dispositive question before the judge. See Iamele, supra at 736.
We also reject the mother's argument that the judge should have accepted her allegations as undisputed because the father failed to appear for the hearing. As an initial matter, it appears that the hearing was conducted ex parte, as noted by the judge at its conclusion. But even assuming the father received notice of the hearing, the mother's argument fails because, in a G. L. c. 209A proceeding, "[t]here is no burden on a defendant to testify or present evidence." Jones v. Gallagher, 54 Mass. App. Ct. 883, 890 (2002).
The mother next contends that the judge erred by relying on evidence taken at the 9 A.M. hearing. The mother fails to explain why this was improper, however. To the extent she argues that the judge made clearly erroneous findings based on that evidence, we are unable to review her argument because she failed to provide us with a transcript of the 9 A.M. hearing, as was her obligation. See Buddy's Inc. v. Saugus, 62 Mass. App. Ct. 256, 264 (2004) ; Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019); Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019).
Finally, the absence of detailed findings of fact and conclusions of law does not require reversal. Where, as here, "we are able to discern a reasonable basis for the order in the judge's rulings and order, no specific findings are required." G.B. v. C.A., 94 Mass. App. Ct. 389, 396 (2018). Cf. Ginsberg, 67 Mass. App. Ct. at 140 n.3 (even without oral or written findings, "[t]he judge's questions during the hearing and her ultimate decision make it clear that she credited [plaintiff's] version of the evidence and rejected [defendant's] conflicting testimony").
Judgment of dismissal affirmed.