Opinion
21-P-783
09-26-2022
K.K. v. K.M.K.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
This appeal stems from the contentious relationship between siblings, the plaintiff, K.K., and his sister, defendant K.M.K. Their disputes -- largely having to do with the care for and, later, the division of the estate of their late mother -- played out in New Hampshire, Florida, and Massachusetts over many years. Pertinent here, in 2015 the plaintiff filed an application for a harassment prevention order under G. L. c. 258E. The order issued ex parte and was extended several times on an ex parte basis, the defendant not appearing apparently due to failure of service.
After a two-party hearing on November 1, 2017, the order was extended for one year. After another two-party hearing on November 1, 2018, it was extended for two years. On November 28, 2018, the defendant filed a motion to terminate the order, which was denied without a hearing on November 28, 2018. The defendant timely filed a notice of appeal from the denial of her motion to terminate.
Following two-party hearings on November 2 and 16, 2020, the order was made permanent on November 16, 2020. The defendant filed a motion for reconsideration on November 23, 2020, which was denied on December 11, 2020. The defendant filed a notice of appeal from the denial of her motion for reconsideration on January 28, 2021.
Appeal from denial of November 2018 motion to terminate.
The defendant argues that the two-year extension of the c. 258E order in November 2018 was improper because the evidence failed to support the extension. Although the plaintiff's affidavit dated August 20, 2015, arguably failed to allege three willful and malicious predicate acts intended to cause fear, intimidation, abuse, or damage to property, see G. L. c. 258E, § 1; O'Brien v. Borowski, 461 Mass. 415, 420 (2012), we must reject the defendant's argument. She did not appeal from the extension order, but instead filed, and appealed from an order denying, a motion to terminate. A motion to terminate "does not provide an opportunity for a defendant to challenge the underlying basis for the order." MacDonald v. Caruso, 467 Mass. 382, 388 (2014). To prevail on a motion to terminate, the defendant "bears the burden of proving a significant change in circumstances since the entry of the order that justifies termination of the order." Id. As the defendant's motion did not address any changes in circumstances, but rather alleged that the initial order and its extensions were wrongly entered, the judge did not err in denying the motion without a hearing.
We decline to address the defendant's argument that the order was wrongfully extended from 2015 through 2017. The defendant failed to appeal from any order prior to the denial of her motion to terminate in November 2018. We are without jurisdiction to consider any prior orders.
Appeal from denial of November 2020 motion to reconsider.
Assuming that the propriety of the November 2020 order making the harassment prevention order permanent is properly before us, we have no basis to disturb that order. In her motion, the defendant argued that the judge overlooked certain facts and law, but the evidence submitted at the hearings that resulted in the permanent order is not before us, as the defendant did not obtain or submit transcripts of these hearings. "It is, of course, the burden of an appellant to provide us with those portions of the record that support [her] claims on appeal. A party claiming an insufficiency of evidence, therefore, has the burden on appeal of furnishing the court with all the evidence" (citation omitted). Wooldridge v. Hickey, 45 Mass.App.Ct. 637, 641 (1998).
The defendant did not file a notice of appeal from the issuance of the order itself on November 16, 2020, but only from the December 11, 2020 denial of her motion for reconsideration. Assuming that the filing of the motion for reconsideration, filed on November 23, 2020, stayed the time for filing the notice of appeal from the underlying order, see Mass. R. A. P. 4 (a) (2) (C), as appearing in 481 Mass. 1606 (2019), the notice of appeal from the denial of the motion for reconsideration, filed on January 28, 2021, was itself untimely. The defendant stated in her notice of appeal that she did not receive notice of the denial until January 12, 2021. We credit this statement and note some uncertainty about when the handwritten docket entry was actually made. We resolve all these questions in the defendant's favor.
We are aware that the defendant filed a motion in the District Court to be provided with transcripts of the November 2 and 16, 2020, hearings at the Commonwealth's expense. The judge denied the motion, finding that the defendant was not indigent. The judge further gave the defendant an opportunity to "request a hearing in person to determine indigency." Nothing in the record indicates that the defendant took advantage of that invitation or otherwise pursued her request for transcripts. In any event, the denial of the defendant's request is not before us. The procedure for such appeals is set forth in G. L. c. 261, § 27D.
The defendant also argued in her motion for reconsideration that the plaintiff's testimony and certain out-of-court statement were false. The judge, however, made findings specifically crediting the testimony of the plaintiff and not that of the defendant. "Findings that are based on credibility assessments are uniquely the province of the trial judge, and we will not disturb them on appeal." Corrado v. Hedrick, 65 Mass.App.Ct. 477, 484 (2006). The record before us provides no basis to reverse the judge's order making the abuse prevention order permanent.
Nothing prevents the defendant from filing another motion to terminate the order. See G. L. c. 258E, § 3 (e). As discussed above, however, such a motion is not an opportunity to relitigate whether the order should have entered in the first place; the defendant must demonstrate a change in circumstances. See MacDonald, 467 Mass. at 388.
Conclusion.
The order entered November 28, 2018, denying the motion to terminate the two-year extension of the harassment prevention order entered on November 1, 2018, is affirmed. The orders entered November 16, 2020, and December 11, 2020, making the harassment prevention order permanent and denying reconsideration of that order, are affirmed. The plaintiff's request for an award of his appellate attorney's fees is denied.
So ordered.
The panelists are listed in order of seniority.