Opinion
17-P-571
01-10-2018
E.S. v. C.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
The defendant (mother) appeals from an abuse prevention order entered against her under G. L. c. 209A (209A order), arguing that the evidence was insufficient to show that she caused or attempted to cause physical harm to the plaintiff (father). The parties were formerly married. On February 5, 2017, after an incident at their daughter's basketball game, the mother applied for a 209A order against the father. One day later, the father applied for a 209A order against the mother based on the same incident, among others. After a hearing the judge allowed both applications and issued mutual 209A orders.
The father did not file a brief on appeal and, as a result, was not heard at oral argument. See Mass.R.A.P. 19(c), 365 Mass. 867 (1974).
The father did not appeal from the order entered against him.
General Laws c. 209A, § 3, as appearing in St. 1990, c. 403, § 3, states that "[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." The orders here plainly qualify as "mutual." See Sommi v. Ayer, 51 Mass. App. Ct. 207, 209-210 (2001). The judge was therefore required to issue specific written findings, which he did not do. Accordingly, we vacate the 209A order entered against the mother and remand the matter for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Rubin, Lemire & Shin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 10, 2018.