Opinion
12-P-282
11-09-2012
TRACY MACDONALD v. KEVIN CARUSO.
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 appeals from an order of the Probate and Family Court denying his motion to vacate a permanent G. L. c. 209A abuse prevention order. The order originally issued in 1999 and was made permanent in 2001. The defendant did not challenge this order on direct appeal. Ten years later, he moved to vacate the order. The judge denied his motion, and the defendant now appeals that denial.
The defendant claims that the abuse prevention order is no longer necessary. He has abided by its terms for twelve years. He has since remarried and moved to Utah. The plaintiff, the person protected by the order, did not oppose the defendant's motion to vacate the order. The defendant alleges that the abuse prevention order has also hindered his day-to-day life, having effects such as appearing on criminal records checks, facing extra scrutiny at airport security, and preventing the defendant from obtaining a firearms permit. In our review of the judge's decision to deny the defendant's motion, 'we will not substitute our judgment for that of the trier of fact. We do, however, scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts.' Iamele v. Asselin, 444 Mass. 734, 741 (2005).
On a collateral attack, a final abuse prevention order 'should be set aside only in the most extraordinary circumstances and where it has been clearly and convincingly established that the order is no longer needed to protect the victim from harm or the reasonable fear of serious harm.' Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 781 (2005). Although the defendant has abided by the abuse prevention order for twelve years, '[t]he fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground . . . of allowing an order to expire or be vacated . . . .' G. L. c. 209A, § 3. Nor has the relocation of the defendant to Utah extinguished the need for the abuse prevention order. Cf. Caplan v. Donovan, 450 Mass. 463, 470-471, cert. denied, 553 U.S. 1018 (2008) (abuse prevention order validly issued despite no personal jurisdiction over Florida defendant). Finally, the fact that the defendant's motion was unopposed does not obviate the need for an abuse prevention order. Because the defendant has the burden of proof, Mitchell, supra at 781, the plaintiff is not required to oppose the motion.
The defendant also asks us to modify this standard because it is overly burdensome and unfair. Just seven years ago, this court considered the question for the first time and spent the lion's share of its opinion formulating this standard. See Mitchell, supra at 776-781. We therefore decline the invitation to modify the standard.
We defer to the trial judge's conclusion that the defendant did not show by clear and convincing evidence that the abuse prevention order is no longer needed.
Order denying motion to vacate permanent G. L. c. 209A order affirmed.
By the Court (Kafker, Cohen & Trainor, JJ.),