Opinion
15-P-51
12-16-2015
IRYNA LIPOVETSKY v. LEON SPIVAK.
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, Leon Spivak, challenges the extension of an abuse prevention order obtained by the plaintiff, Iryna Lipovetsky, his ex-wife, from the Newton District Court pursuant to G. L. c. 209A, § 3. In particular, the defendant challenges an order that was entered on April 4, 2014, modifying a previous order issued by a different judge on February 7, 2014, which, in turn, extended an initial ex parte order issued by a third judge on January 27, 2014. The order that was entered on April 4, 2014, continued in force most of the terms of the earlier orders (no contact, no abuse, and leave and remain away from the plaintiff), and added a requirement that the defendant give the plaintiff e-mail notice twenty-four hours in advance of a permitted visitation with their child, and required that the exchange of the child occur at the Newton police station. The order entered on April 4, 2014, was to remain in effect until April 3, 2015.
At all relevant times, the defendant's visitation with his daughter was governed by the terms of a judgment of divorce nisi entered by the Plymouth Probate and Family Court on May 3, 2011.
Background. The parties were married in 2006 and had one daughter. They separated in 2009, and a final judgment of divorce nisi entered in August, 2011. A separation agreement dated May 3, 2011, provided for joint custody of their daughter, the plaintiff having primary physical custody and the husband having scheduled visitation. Sometime during late 2013 or early 2014, the defendant filed a complaint for modification in the Plymouth Probate and Family Court to alter the visitation arrangement, among other aspects of the separation agreement. During the pendency of those proceedings, on January 27, 2014, the plaintiff sought and was granted an ex parte temporary protective order from the Newton District Court, which, as noted earlier, was extended on February 7, 2014, to April 4, 2014, when the order that is the subject of this appeal was entered.
As of the date of the filing of the briefs in this case, the modification hearing had not taken place.
It is unnecessary for us to discuss or assess the sufficiency of the allegations made by the plaintiff in her affidavit in support of the initial ex parte order that were also the subject of the evidentiary hearing that took place when the first extension of the initial order was granted on February 7, 2014. The judge who heard the case on February 7, 2014, did not preside over the case when it was before the court on January 27 and February 4, 2014.
The transcript of the April 4, 2014, hearing consists of seven pages. The plaintiff and the defendant were before the court and the plaintiff was self-represented. The defendant requested a brief continuance to allow his attorney to arrive, pointing out that it was 9:55 A.M. and the hearing was scheduled for 10:00 A.M. However, when the plaintiff indicated that she had to pick up her child at 10:30 A.M., the judge decided to proceed with the hearing. No witnesses were sworn. The plaintiff stated that she wanted the abuse prevention order extended. Without questioning the plaintiff or offering the defendant an opportunity to be heard, the judge stated that she would extend the prior abuse prevention order for one year.
The judge next asked the defendant whether there was anything he had to say about the arrangement called for in the prior order which required that he pick up his daughter for visitation at the Newton police station. The defendant said he was opposed to that arrangement, but complied with the order because he was required to do so. The defendant also denied that he had ever abused the plaintiff. The plaintiff responded by stating that the defendant had followed her and made threats against her. The judge did not question either party about any of the statements that were made relating to the defendant's alleged abuse. The judge concluded the hearing by stating that she was extending the order for one year on the same terms and conditions.
Discussion. A scheduled hearing to extend or modify an abuse prevention order issued under G. L. c. 209A is an adversarial proceeding in which the parties have constitutional due process rights that include the "right to testify and to present evidence," and to cross-examine adverse witnesses. C.O. v. M.M., 442 Mass. 648, 656 (2004). See S.T. v. E.M., 80 Mass. App. Ct. 423, 429-430 (2011). The plaintiff has the burden of proving that it is more likely than not that she is "suffering from abuse." Iamele v. Asselin, 444 Mass. 734, 736 (2005), quoting from G. L. c. 209A, § 3. Due to the sensitive nature of many of these cases and the frequency with which one or both parties is self-represented, judges are encouraged to conduct hearings pursuant to G. L. c. 209A, § 3, in an informal and relaxed atmosphere. See generally Guidelines for Judicial Practice: Abuse Prevention Proceedings § 5:01 (Conduct of Hearings after Notice When Both Parties Appear: General) (2011); Mass. G. Evid. § 1106 (2015). However, a judge is not permitted to dispense with the administration of the oath to the witnesses, and must ensure that the parties are given an opportunity to cross-examine the adverse witnesses. See Banna v. Banna, 78 Mass. App. Ct. 34, 36 (2010) (at a G. L. c. 209A, § 3, hearing the judge should "ascertain the current state of affairs[;]" a judge does not fulfill her obligations simply by asking the plaintiff if she wants an extension of a prior order).
Based on the record before us, an evidentiary basis for the extension order entered on April 4, 2014, is lacking, and the manner in which the hearing was conducted was outside the bounds of a sound judicial discretion.
It is troubling that the judge did not briefly continue the hearing to give defendant's counsel an opportunity to be present.
Order dated April 4, 2014, vacated.
By the Court (Agnes, Sullivan & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 16, 2015.