Opinion
No. 12–P–1441.
2013-07-29
Sara Katherine BELLEW v. Bruce Wayne JOHNSON.
By the Court (MILKEY, CARHART & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from the denial of an extension of an abuse prevention order previously entered against the defendant.
Because we conclude that the judge erred in denying the plaintiff a full hearing on her petition to extend the abuse prevention order, we remand the case to the Boston Municipal Court for further proceedings consistent with this memorandum and order.
The defendant did not file a brief.
Background. On April 9, 2012, the plaintiff applied in the Boston Municipal Court, ex parte, for an abuse prevention order against the defendant. The order issued, and a hearing on its extension occurred on May 18, 2012. At the hearing, the defendant was represented by counsel and the plaintiff appeared pro se. The parties have a three year old child. After the judge reviewed the plaintiff's affidavit in support of the ex parte order, he had a brief exchange with the plaintiff. Defense counsel then asked to approach side bar and subsequently divulged alleged information that pertained to the plaintiff's mental status and also averred that the plaintiff sought the order out of spite. On inquiry by the judge, it became clear that a related action between the two parties had been heard by a judge in the Probate and Family Court (probate judge). The judge then refused to extend the order and referred the parties to the probate judge. He did issue an oral mutual restraining order that was to remain in effect for the remainder of that day. The plaintiff subsequently obtained an abuse prevention order in the Probate Court. Discussion. The plaintiff argues it was an abuse of discretion for the judge to decline to hear, on the merits, the application for the abuse prevention order. Further, the plaintiff argues this case is not moot because the proper issuance of an abuse prevention order is an issue of Statewide legal significance. We agree that the judge should have heard the application for the abuse prevention order extension on the merits and that his referral of the case to the Probate Court was error.
General Laws c. 209A provides a protocol of procedures to be followed in instances where a person alleges that she is suffering from abuse from a family or household member.
Section 2 of c. 209A, as amended by St.1983, c. 678, § 3, provides that venue may be “in the superior court department or the Boston municipal court department or respective divisions of the probate and family or district court departments having venue over the plaintiff's residence.” Thus, as long as one of those court departments has venue over the plaintiff's residence, the plaintiff can choose the court in which to file the application. Here, the plaintiff chose to bring the application in the Boston Municipal Court and, therefore, that court had jurisdiction over the application and had the responsibility of addressing the application in a prompt manner.
.General Laws c. 209A, § 1, as amended by St.1990, c. 403, § 2, defines family or household members as persons “having a child in common regardless of whether they have ever married or lived together.”
An applicant has the right to expect that her application will be heard by the appropriate court and that, if sufficient evidence is presented, she will be the beneficiary of a protective order issued by the court. Here, the judge inexplicably terminated the hearing on learning that another proceeding involving the same parties was pending in the Probate Court. The termination of the hearing was error. A judge may not, sua sponte, terminate an abuse prevention hearing and transfer the case to another court or forum. S.T. v. E.M., 80 Mass.App.Ct. 423, 430 (2011), citing Guidelines for Judicial Practice: Abuse Prevention Proceedings § 2:07 commentary (Dec.2000) (“If the court in which a person initially seeks protection under c. 209A has jurisdiction, the person should be heard as soon as possible in that court, and should not be sent to another court”). The net effect of referring the parties to the Probate Court was to deny the plaintiff her right to court-ordered protection from abuse.
Further, issuing a mutual restraining order, even if it was to be in effect for the remainder of the day, only compounded the error. See G.L. c. 209A, § 3, as appearing in St.1990, c. 403, § 3 (“A court may issue a mutual restraining order or mutual no-contact order pursuant to any abuse prevention action only if the court has made specific written findings of fact”). See also Guidelines for Judicial Practice: Abuse Prevention Proceedings § 6:07 (2011) ( “A mutual abuse prevention order should only be issued when both parties are suffering from abuse, having proved that circumstance by a preponderance of the evidence, and both are genuinely in need of protection from such abuse”).
We are well aware that many of the trial courts face heavy case backlogs; nonetheless we take this opportunity to again emphasize that a court that has jurisdiction over an application for an abuse prevention order has a responsibility to hear the application promptly on the merits.
While we recognize that, as a practical matter, this case may be moot to the plaintiff as she has received an abuse prevention order from the Probate Court, this case is not moot in the legal sense because the importance of assuring the proper judicial administration of restraining orders is of great “legal significance.” Uttaro v. Uttaro, 54 Mass.App.Ct. 871, 873 n.2 (2002).
We therefore vacate the judge's order denying an extension of the abuse prevention order, and remand the case to the Boston Municipal Court for a further hearing should the plaintiff choose to proceed.
So ordered.