Opinion
20-P-1121
03-14-2022
C.C. v. J.M.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order extending a G. L. c. 209A abuse prevention order (209A order). He contends that the extension of the order should be vacated because, inter alia, (1) the action was precluded by a prior abuse prevention order predicated on the same abusive conduct, and (2) venue was not proper in the Lynn District Court. We affirm.
We acknowledge the amicus letter submitted by the Massachusetts Law Reform Institute.
Background. 1. The 2018 complaint and order. On February 20, 2018, the defendant was arrested at the Marblehead residence that he then shared with the plaintiff. The defendant was charged with assault and battery on a household member for striking the plaintiff with a closed fist. The plaintiff sought a G. L. c. 209A abuse prevention order in the Salem District Court (2018 complaint). The 2018 complaint detailed the February 20, 2018 incident as well as other threats and instances of physical and emotional abuse. A judge granted a temporary abuse prevention order that was subsequently extended until May 8, 2019 (2018 order). On May 8, 2019, the plaintiff failed to appear at a scheduled extension hearing and thus the 2018 order expired.
This charge was later dismissed.
The 2018 complaint itself was not included in the record on appeal. However, there is no dispute that the 2018 complaint alleged the same abusive conduct as the current action. The plaintiff in the current action asserts that the abuse included two instances where the defendant attempted to suffocate her with a bath towel. Further, the defendant "threatened to kill [her] on a daily basis" and told her that if she "reported the abuse to the authorities he would end [her] life."
2. The 2019 complaint and order. Nine days later, on May 17, 2019, the plaintiff filed a new 209A complaint in the Salem District Court (2019 complaint). The 2019 complaint was supported by an affidavit documenting the same abuse as the 2018 complaint (2019 affidavit), except for a typographical error listing a December 2017 incident as having occurred in December 2018. The 2019 affidavit acknowledged that the court had "granted a restraining order last year" and sought a new order because the plaintiff was "still in fear of [her] life." A new temporary abuse prevention order was granted, and a one-year order was entered following a joint hearing, on June 7, 2019, at which the defendant failed to appear (June 2019 order).
Subsequently, the defendant moved to vacate the June 2019 order, claiming alleged misrepresentations in the 2019 affidavit. He also moved to dismiss or transfer the matter based on improper venue, and sought discovery of, inter alia, the plaintiff's medical records. A judge in the Salem District Court ultimately found that venue was not proper in the Salem District Court and transferred the matter to the Lynn District Court, which serves Marblehead, where the parties had resided at the time of the abuse alleged in both the 2018 and 2019 complaints.
The defendant first sought to remove his default for failing to appear at the prior hearing. Following a hearing on the motion, a judge allowed the defendant's motion to remove his default, but denied his motion seeking dismissal or transfer due to improper venue. The defendant's motion to vacate followed, and he filed a further motion for discovery and motion to reconsider the denial of his motion to dismiss or transfer for improper venue.
The allowance of the motion to transfer was allowed "without prejudice" with leave to renew the motion to dismiss for improper venue in the Lynn District Court.
Following transfer of the matter to the Lynn District Court, the defendant again moved to dismiss for improper venue. After a series of further motions, a new judge (the Lynn judge) held a hearing in the Lynn District Court on November 19, 2019, at which both parties were present and represented by counsel. The Lynn judge found venue proper, denied the defendant's discovery requests, and extended the abuse prevention order until November 18, 2022. On November 27, 2019, the defendant filed a notice of appeal. On February 21, 2020, the defendant filed a motion for reconsideration, which the Lynn judge denied on March 2, 2020. The defendant also appealed from the denial of his motion for reconsideration.
Discussion. 1. Standard of review. We review the extension of a 209A order "for an abuse of discretion or other error of law." Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 664 (2020), quoting E.C.O. v. Compton, 464 Mass. 558, 562 (2013). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
2. Preclusion. The defendant argues that the June 2019 order initially issued in the Salem District Court and subsequently extended in the Lynn District Court was barred by principles of preclusion. He contends that because the 2018 order was predicated on the same abusive conduct as the June 2019 order, the doctrines of claim preclusion and issue preclusion bar the second order. The argument is unavailing.
As mentioned, supra, the 2018 complaint and the 2019 complaint described the same December 2017 incident, notwithstanding that the plaintiff's 2019 affidavit incorrectly listed the incident as having occurred in December 2018. Where the Lynn judge found the misstatement to be a typographical error, we discern no error in his determination that the plaintiff did not commit a fraud on the court. See, e.g., M.C.D. v. D.E.D., 90 Mass. App. Ct. 337, 342 (2016).
A judge has discretion to issue a protective order under G. L. c. 209A if the defendant is "placing another in fear of imminent serious physical harm." Iamele v. Asselin, 444 Mass. 734, 737 (2005), quoting G. L. c. 209A, § 1. The touchstone of the court's analysis is whether the plaintiff is "currently in fear of imminent serious physical harm" and whether that "fear is reasonable." Id. In crafting this process, "[t]he Legislature devised a procedure in G. L. c. 209A that is intended to be expeditious and as comfortable as it reasonably can be for a lay person to pursue." Frizado v. Frizado, 420 Mass. 592, 598 (1995).
The plain language of G. L. c. 209A contemplates the issuance, in certain circumstances, of an abuse prevention order predicated on the same abusive conduct as a prior order. General Laws c. 209A, § 3, provides that "[t]he fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground ... for refusing to issue a new order" (emphasis added). Because the statutory language disallows the refusal of a new order on the grounds that no abuse has occurred during the pendency of an order, it necessarily contemplates the issuance of a new order predicated on the same conduct as a prior order. See also Guidelines for Judicial Practice: Abuse Prevention Proceedings § 5:08 (Sept. 2011) (terminating an order does "not prevent a plaintiff suffering from abuse from seeking a new order or other protection from the court at any time in the future"). If such conduct supports the plaintiff's reasonable and current "fear of imminent serious physical harm," Iamele, 444 Mass. at 737, a judge is not only permitted to issue a new order but is prohibited from denying that order solely because no further abuse has occurred. Such a reading is consistent with the plain language of the statute and furthers the purpose of G. L. c. 209A, to provide a complaint process that is "expeditious and ... comfortable ... for a lay person to pursue." Frizado, 420 Mass. at 598. See D'Allessandro v. Lennar Hingham Holdings, LLC, 486 Mass. 150, 153 (2020) (statutory provisions "must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated" [citation omitted]).
We find no indication that this reference to a "new order" is limited to new orders issued pursuant to the same action. Chapter 209A contemplates changes to an order during the pendency of the action and refers to them as modifications, not new orders. See G. L. c. 209A, § 3 ("The court may modify its order at any subsequent time upon motion by either party").
The most recent iteration of these guidelines, released in 2021, states the same. See Guidelines for Judicial Practice: Abuse Prevention Proceedings § 5:08 (Oct. 2021). Because the events at issue took place prior to these revisions, we cite to the guidelines in effect at the time of the lower court matter.
In light of the statutory language discussed, supra, and the facts of the present case, we are not persuaded that the expiration of the 2018 order was a final judgment on the merits with preclusive effect. Here, as the defendant states in his brief, the 2018 order "expired." It was neither litigated nor entered as a final judgment. See DaLuz v. Department of Correction, 434 Mass. 40, 45 (2001) (claim preclusion requires final judgment on the merits); Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132, 134 (1998) (issue preclusion requires final judgment on merits). See also Custody of a Minor, 375 Mass. 733, 741-742 (1978) (well settled that "defence of res judicata ordinarily must rest upon the fact that a judgment upon the merits had been entered in the former litigation[;] ... [t]hus, where a prior case simply has been dismissed without an evidentiary hearing, the court in the second action must give the prior judgment res judicata effect only when the defendant ‘proved that ... [the prior judgment was] rendered upon some particular ground going to the merits’ " [citations omitted]). Furthermore, the facts regarding whether the plaintiff was entitled to an extension order were not actually litigated in any prior proceeding. Thus, the Lynn judge was not precluded from hearing and deciding the extension of the June 2019 order.
We note that the 2018 complaint and its supporting affidavit, as well as the 2018 docket, were not included in the appellate record. See G.B. v. C.A., 94 Mass. App. Ct. 389, 398 (2018) (rejecting preclusion defense in subsequent 209A proceeding where court "[did] not have the prior hearing transcripts" and was thus "unable to ascertain the basis of those earlier decisions").
The defendant's assertion that allowing 209A orders predicated on the same conduct as a prior order will leave defendants vulnerable to "repeated and potentially endless cycles of abuse protection order litigation" is unavailing. There is no such risk of repetitious unmeritorious orders where "[a] party filing a complaint under [209A] shall be required to disclose any prior or pending actions involving the parties for ... abuse prevention." G. L. c. 209A, § 3.
3. Venue. The defendant asserts that venue was not proper in the Lynn District Court. He contends that the court did not have venue because, at the time the 2019 complaint was filed, the plaintiff no longer lived at their former residence in Marblehead, and she did not leave that residence to avoid abuse.
If a plaintiff "has left a residence or household to avoid abuse," G. L. c. 209A, § 2, provides a choice of venue. The plaintiff "shall have the option of commencing an action in the court having venue over such prior residence or household, or in the court having venue over the present residence or household." Id. "The purpose of the venue provision ... [is] to facilitate a plaintiff's application for an order, and to encourage the prompt and timely resolution of the application." M.B. v. J.B., 86 Mass. App. Ct. 108, 112 (2014).
The recently revised judicial guidelines now provide guidance to judges on venue issues like those that arose here. See Guidelines for Judicial Practice: Abuse Prevention Proceedings §§ 1:09, 3:03, 5:01A, & 6:08 (Oct. 2021).
Here, there was sufficient evidence for the judge to conclude that the plaintiff left the Marblehead residence to avoid abuse. The plaintiff testified that she continued to live there until the lease expired on July 31, 2018. After the expiration of the lease, the plaintiff moved to a second residence, the location of which has been kept confidential by court order. See G. L. c. 209A, § 8. In August of 2018, the plaintiff was informed that the defendant would soon be released from incarceration. As a result, the plaintiff moved out of the second residence because she feared abuse.
There is no dispute that the Lynn District Court has venue over incidents that occurred at the shared residence.
The defendant contends that even if the plaintiff left the second residence to avoid abuse, there was no evidence that the plaintiff left the Marblehead residence to avoid abuse. Where the plaintiff left the Marblehead residence within months of the February 2018 incident, made efforts to conceal the location of the second residence, and testified that she left the second residence to avoid abuse, the evidence supports the judge's reasonable inference that the plaintiff also left the Marblehead residence to avoid abuse. Therefore, it was not error for the judge to find venue proper in the Lynn District Court. See M.B., 86 Mass. App. Ct. at 112-113 (venue proper where plaintiff left residence due to fear of abuse and filed complaint ten months later in court with venue over that prior residence).
The plaintiff filed the 2019 complaint about ten months after leaving the Marblehead residence.
4. Meaningful opportunity to be heard. Finally, the defendant contends that he was denied a meaningful opportunity to be heard at the final joint hearing in the Lynn District Court because (1) he did not expect the judge to address the merits at the hearing and (2) his discovery request was denied.
General Laws c. 209A, § 4, provides that "[t]he court shall give the defendant an opportunity to be heard on the question of continuing [a] temporary order." The guidelines for abuse prevention proceedings elaborate further, stating "[a]lthough the court should not permit harassment or intimidation, in contested proceedings each party must be given a meaningful opportunity to challenge the other party's evidence." Guidelines for Judicial Practice: Abuse Prevention Proceedings § 1:02(f) (Sept. 2011). The defendant's claim that these due process requirements were not met is unavailing.
Here, on October 23, 2019, the Lynn District Court notified the parties of a hearing to be held November 19, 2019. The defendant was represented by counsel and was aware of the plaintiff's allegations, as he was in possession of the 2019 affidavit. Furthermore, the transcript of the hearing clarifies that the issues before the court were the motion for reconsideration, motion to dismiss for improper venue, and motion for discovery. The defendant also had a reasonable opportunity to cross examine the plaintiff and challenge the evidence.
Finally, the Lynn judge did not abuse his discretion in denying the defendant's discovery requests. Chapter 209A does not directly address discovery procedures. However, the guidelines for abuse prevention proceedings provide that "[d]iscovery orders are within the court's discretion and should be issued only after a hearing and only upon a showing that such discovery is necessary to provide specific information essential to the adjudication of the case or the issuance of particular abuse prevention orders." Guidelines for Judicial Practice: Abuse Prevention Proceedings § 1:03 (Sept. 2011).
"Discovery should not be ordered if the information would be merely ‘relevant’ or ‘interesting.’ The test should be one of necessity. Generally, the testimony of the parties and any witnesses will provide an adequate basis for the adjudication of domestic abuse cases and, when warranted, the issuance of abuse prevention orders."
Guidelines for Judicial Practice: Abuse Prevention Proceedings § 1:03 commentary (Sept. 2011).
Here, the defendant sought discovery of records pertaining to the plaintiff's mental health and disability status at the time of the February 2018 incident. The defendant contends that these records were relevant to the plaintiff's credibility regarding her accounts of abuse. While these records may have been relevant, the judge allowed cross-examination of the plaintiff and indicated that he would grant discovery if he felt it was still necessary. On the record before us, we cannot say that the Lynn judge abused his discretion where he considered the defendant's arguments, allowed cross-examination of the plaintiff, and determined that discovery was not necessary for him to decide that the plaintiff was "in fear of imminent serious physical harm." G. L. c. 209A, § 1. The November 19, 2019, extension of the abuse prevention order and the order dated March 2, 2020, denying the defendant's motion for reconsideration are affirmed.
The defendant also challenges the denial of a discovery request seeking recordings of calls between the plaintiff and defendant while the defendant was incarcerated. The plaintiff testified to the relevant content of the calls.
The defendant also seeks to vacate the temporary orders issued by the Salem District Court. The defendant appeals from the denial of his motion to reconsider the November 2019 order of the Lynn District Court. Therefore, the Salem District Court orders are not properly before this court. See Siles v. Travenol Lab., Inc., 13 Mass. App. Ct. 354, 354 n.1 (1982). In addition, "other points, relied on by the defendant[ ] but not discussed in this [decision], have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
So ordered.
Affirmed