Opinion
11-P-496
12-29-2011
REBECCA DAKESSIAN v. GARO K. DAKESSIAN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Garo Dakessian, appeals from an order of a District Court judge extending for one year an abuse prevention order entered in favor of his wife, Rebecca. The original order had required him to vacate the marital home, refrain from all contact with her, and to remain at least 100 yards away from her 'even if [she] seem[ed] to allow . . . contact.' The defendant contends (1) that he did not receive a fair hearing in opposition to the original order a year before the extension, and (2) that his wife did not submit sufficient evidence to warrant the extension of the order. For the following reasons, we affirm the extension order.
Background. In support of the original ex parte order entered on November 21, 2009, the wife submitted a lengthy affidavit describing chronic tension between the parties and a climactic physical encounter on that day, in which the parties 'scuffled and exchanged hits from the kitchen to the foyer, then into the dining room where [she] finally fell to the floor.' She related also that, in the course of that struggle, the parties had screamed at, and spat upon, one another, and that he had put his hands around her neck and squeezed hard enough to cause her to shake. She concluded that this incident caused her to 'fear for [her] well being.'
On November 23, 2009, after service of the ex parte order upon the husband, and after a hearing at which both parties were present, a second District Court judge extended it for one year. Neither the record appendix, nor the parties' briefs, furnish any details about the hearing of November 23, 2009. In this appeal, the husband complains that he did not have the opportunity to present responsive evidence at the November 23, 2009, hearing (inferably because it fell only two days after entry of the emergency ex parte order). However, it is undisputed that he did not pursue a proper appeal from that first extension order to this court. See Zullo v. Goguen, 423 Mass. 679, 681 (1996) (review of c. 209A orders should proceed by appeal to the Appeals Court).
On November 22, 2010, the same District Court judge heard the wife's application for a second one-year extension. Without objection from either party, the judge reexamined the wife's original affidavit of November 21, 2009, and received an extensive opposing affidavit from the husband. Both parties were sworn and offered testimony. The wife testified that, in March of 2010, in the course of a recess during their divorce proceedings in the Probate and Family Court, the husband approached her, spoke angrily to her, and used his cellular telephone to take pictures of her. The husband acknowledged to the judge that he had taken the pictures.
At the conclusion of the hearing the judge ruled from the bench. 'I'm satisfied that the plaintiff has sustained her burden for the extension of this order. I note particularly the demeanor of the parties and the credibility determinations that I've made during this hearing.' She then extended the order to November 21, 2011.
Discussion. We review abuse prevention orders entered under G. L. c. 209A, §§ 1, 3, for abuse of discretion or error of law. Crenshaw v. Macklin, 430 Mass. 633, 636 (2000). As usual, the reviewing court treats the trial judge's determination of credibility with extreme deference because he or she has directly observed the witness's demeanor under direct and cross-examination. See, e.g., Pike v. Maguire, 47 Mass. App. Ct. 929, 929 (1999); Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006).
1. Husband's opportunity to present evidence at the first extension hearing. The defendant argues that he did not have a fair opportunity to prepare a factual defense to his wife's allegations of abuse at the hearing of November 23, 2009. If he wished to show that the judge did not afford him adequate time for preparation and response, or if he wished to show that the judge incorrectly assessed the merits, his proper course was to pursue an appeal to this court. See Zullo v. Goguen, supra; Watson v. Walker, 447 Mass. 1014, 1015 (2006). He failed to do so. As the judge correctly observed at the second extension hearing, the trial court at that point will not revisit the evidence presented at the original hearing. See Iamele v. Asselin, 444 Mass. 734, 740 (2005); Vittone v. Clairmont, 64 Mass. App. Ct. 479, 486 (2005). The defendant has effectively waived that contention.
2. Merits of the second extension. The defendant has preserved his challenge that the evidence at the second extension hearing did not support the judge's order. As the judge stated, the standard for extension would be whether the wife remained reasonably in fear of imminent serious physical harm. G. L. c. 209A, § 1(b). Iamele v. Asselin, supra at 739-740. For that purpose, the judge could weigh the entire history of the parties' relationship. Vittone v. Clairmont, supra at 486-489. That assessment could include the allegations of the wife's original affidavit account of the deteriorating condition of the marriage and the physical combat of November 21, 2009, and her November, 2010, testimony and the husband's acknowledgment of the hostile courthouse encounter of March, 2010. From these events, and from an evaluation of the parties' demeanor, the judge could find a reasonable basis for the wife's asserted continuing fear of imminent serious physical harm. Because the judge's findings are visibly implicit, no separate written itemization of them was necessary. See Ginsberg v. Blacker, supra.
Order extending abuse prevention order to November 21, 2011, affirmed.
By the Court (Green, Sikora Wolohojian, JJ.),