Opinion
16-P-1234
09-07-2017
C.R.S. v. J.M.S.
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 May 29, 2016, a District Court judge issued an ex parte abuse prevention order pursuant to G. L. c. 209A ordering the defendant not to abuse the plaintiff, not to contact her, directly or indirectly, and to stay fifty yards away from her. The defendant also was ordered to vacate and to stay away from the plaintiff's residence., The ex parte order was to expire on May 31, 2016.
The judge awarded custody of the parties' sixteen month old child to the plaintiff; permitted the defendant to pick up his personal belongings from the parties' shared residence in the company of the police at a time agreed to by the plaintiff; and ordered the defendant to surrender to the police all "guns, ammunition, gun licenses and FID cards."
The parties' residence was owned by the defendant; however, the judge permitted the plaintiff and the child to stay at that residence after hearing testimony that the plaintiff's family was in the State of Washington and that she had nowhere else to stay in the area.
Two days later, on May 31, 2016, a different judge held a hearing after notice, following the defendant's arraignment on a criminal charge for the incident that gave rise to the restraining order. Both the defendant, who was represented by counsel, and the plaintiff testified at the hearing. The plaintiff testified that the defendant had been emotionally abusive for eleven years and that she believed that he had a drinking problem. She said that she was "scared for [herself] and for [her] daughter."
The plaintiff also testified to at least two incidents of physical abuse. In one incident, the two were arguing verbally; she testified, "[T]hen that morning I said I was going to leave. And he told me I couldn't take [their daughter]. And I went down the hallway to get some things. And he grabbed me and pushed me against the wall . . . ." She then telephoned the police and the police responded. At that time she applied for and was granted the ex parte order from an on-call judge. The police later placed the defendant under arrest at the police station. The plaintiff also testified that the previous summer, while they were on vacation in the State of Washington, the defendant had "pushed [her] down, pushed [her] against a wall," as "he ha[d] many times before that."
The defendant testified and denied that there had been any physical abuse, although he acknowledged that the relationship had been "stressful." The judge then asked the defendant a series of questions and heard argument from defense counsel and from the plaintiff.
Discussion. The defendant first argues that the ex parte order should not have issued. However, "an abuse prevention order, issued ex parte, is [not] itself entitled to appellate review," so long as the defendant had an opportunity to be heard at a subsequent hearing after notice. Allen v. Allen, 89 Mass. App. Ct. 403, 405 (2016). Here, the defendant was given notice of the extension hearing, which was held two days after the ex parte order issued and, represented by counsel, was given an opportunity to oppose the extension of the ex parte order. He is not entitled to further review in this court.
The defendant next argues that the ex parte order should not have been extended, contending that his actions, as described by the plaintiff, did not rise to the level of abuse. Although he concedes that the plaintiff's "perception of alleged 'controlling behavior' on [his] part may have given rise to a measure of fear," in his view, that fear was not reasonable. 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. See Iamele v. Asselin, 444 Mass. 734, 736 (2005) (Iamele); MacDonald v. Caruso, 467 Mass. 382, 386 (2014). See also Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 782 (2005) (proper to extend order set to expire upon showing of 'continued need' without showing of new abuse); G. L. c. 209A, § 3." Callahan v. Callahan, 85 Mass. App. Ct. 369, 372 (2014). "In acting on an original G. L. c. 209A application or an application for an extension, a judge has wide discretion, see Iamele . . . , supra at 742, and can properly take into account the entire history of the parties' relationship, see Pike v. Maguire, 47 Mass. App. Ct. 929, 930 (1999), and any trauma or threat of harm to the applicant's minor children. Vittone v. Clairmont, [64 Mass. App. Ct. 479,] 489 [(2005)]." Smith v. Jones, 75 Mass. App. Ct. 540, 544 (2009).
We are satisfied that the judge properly found that the plaintiff met her burden here. She testified to at least two separate incidents of physical assault (with one incident occurring at the time the ex parte order issued) in the course of a deteriorating and stressful relationship -- a relationship that she testified had been characterized by the defendant's controlling behavior as well as verbal and emotional abuse. At the time of the hearing, it appeared that the relationship was ending and the defendant was drinking heavily. On these facts, we cannot say that the judge erred in extending the order for one year, concluding that the plaintiff met her burden by a preponderance of the evidence. We note that, in so concluding, the judge was entitled to "draw reasonable inferences from the circumstantial evidence described above." Commonwealth v. Gordon, 407 Mass. 340, 350 (1990).
Order entered May 31, 2016, affirmed.
By the Court (Hanlon, Blake & Neyman, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: September 7, 2017.