Opinion
19-P-1627
11-04-2020
M.M. v. C.D.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the denial of his motion to modify a G. L. c. 209A abuse prevention order. We affirm.
Background. On February 15, 2011, the plaintiff obtained an ex parte abuse prevention order against the defendant. On February 28, 2011, the order was extended for one year. At the expiration of the one-year order, a judge of the District Court made the abuse prevention order permanent on February 27, 2012. The defendant thereafter moved to vacate the permanent order. Eventually, the permanent order was vacated, and the case was remanded for a new hearing, with the permanent order remaining in effect in the interim.
This court remanded the case to the trial court for rehearing three times. See M.M. v. Doucette, 92 Mass. App. Ct. 32 (2017) (vacating and remanding February 27, 2012 order, where defendant was denied opportunity to be heard); M.M. v. Doucette, 94 Mass. App. Ct. 1110 (2018) (vacating and remanding September 26, 2017 order, where judge failed to consider anew whether abuse prevention order should be made permanent); and M.M. v. C.D., 97 Mass. App. Ct. 1108 (2020) (vacating and remanding January 18, 2018 order, where judge conducted hearing before this court's remand rescript issued). To date, it appears that the third rehearing has not taken place.
On August 20, 2019, the defendant moved to modify the abuse prevention order to make the order "mutual." The motion was denied without a hearing on September 6, 2019, and the defendant appealed. On appeal, the defendant argues that the judge abused his discretion in denying the motion without a hearing and without issuing findings of fact and conclusions of law where the evidence was insufficient to issue the order and the judge's actions were demonstrative of bias.
Assuming the doubtful proposition that a defendant in an abuse prevention matter may seek a mutual abuse prevention order without filing an application for such an order under a new docket number, the defendant was required to establish his own entitlement to relief under G. L. c. 209A. See Uttaro v. Uttaro, 54 Mass. App. Ct. 871, 873 (2002). Therefore, he was required to establish that he was "suffering from abuse." Iamele v. Asselin, 444 Mass. 734, 736 (2005), quoting G. L. c. 209A, § 3. In support of his motion, the defendant recounted the victim's testimony at his 2011 criminal trial and argued that it established that the victim was the aggressor in their relationship. The defendant failed to show, however, that he was currently suffering from abuse, except to indicate that he believed he was denied parole due to the existence of the plaintiff's restraining order against him. This is not the type of "abuse" contemplated by G. L. c. 209A. See Iamele, supra at 736-737 ("abuse" under G. L. c. 209A involves physical harm, involuntary sexual relations, or placing another in fear of imminent serious physical harm). See also Uttaro, supra at 874-875 (fear of arrest due to plaintiff's selective enforcement of abuse prevention order insufficient to constitute "abuse" under G. L. c. 209A). There was no error in denying the motion without a hearing where the defendant failed even to allege facts entitling him to relief.
We note that the defendant previously moved for an abuse prevention order against the plaintiff in this proceeding on October 10, 2017. At that time, the defendant similarly alleged that he was entitled to an order of protection due to the events at issue in the defendant's 2011 criminal trial. After hearing, the complaint was denied on November 1, 2017, by the same judge who ruled on the motion at issue in this appeal. That the defendant was denied the same relief based on the same ground earlier is another reason justifying denial of the motion without a hearing. See Audubon Hill S. Condominium Ass'n v. Community Ass'n Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 470 (2012), quoting Peterson v. Hopson, 306 Mass. 597, 600 (1940) ("After the denial of one motion, a second motion based on the same grounds need not be entertained").
Order denying motion to modify abuse prevention order affirmed.