Opinion
No. 12–P–939.
2013-05-3
Lottie OLLER v. Richard SAUNDERS.
By the Court (GRAINGER, BROWN & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Richard Saunders appeals from the denial of his motion to vacate a permanent G.L. c. 209A abuse prevention order. On appeal, he asserts that the Probate Court judge erred by denying his motion and asks this court to reverse. We affirm.
Background. The parties were married in 1985 and divorced in 1996. There are three children of the marriage. Beginning in 1995 and continuing through at least 2006, Lottie Oller obtained a series of temporary abuse prevention orders against Saunders. Saunders asserts that Oller's allegations in those proceedings were fraudulent. Throughout this period Saunders was arrested on numerous occasions for violations of the orders. In each instance, the charges were dismissed or Saunders was found not guilty. In 2006, a permanent abuse prevention order was issued by a judge of the Probate Court. That order has been modified several times, most recently in 2010. It its current version, it applies only to Oller, not to the parties' children. Saunders has never appealed from any of the abuse prevention orders. In 2011, however, Saunders filed a motion to vacate the permanent order asserting that (1) he was incarcerated on a lengthy sentence (on unrelated charges), (2) the parties' children had reached the age of majority and were no longer covered by the order in any event, (3) he has remarried, and (4) he intended to leave the Commonwealth upon his release from incarceration in approximately 2015. Saunders also asserted that each of the c. 209A abuse prevention orders had been procured by Oller's fraud and perjury. After a hearing in Probate Court during which both parties testified, the Probate judge took the matter under advisement and later denied the motion. Saunders filed this appeal.
Discussion. “We have said that ‘[i]n deciding whether to modify or renew an abuse prevention order, a judge's discretion is “broad.” ‘ “ Mitchell v. Mitchell, 62 Mass.App.Ct. 769, 777 (2005), quoting from Litchfield v. Litchfield, 55 Mass.App.Ct. 354, 356 (2002). “In deciding whether to grant or deny a party's request for relief, the basis on which the order was initially issued is not subject to review or attack.” Id. at 780. “[I]n proceedings to vacate, terminate, or modify a c. 209A order, the [party protected by the order] has no burden to establish the basis for the issuance of the underlying order.” Id. at 781.
Oller was granted leave to file a conforming brief in this court on or before September 28, 2012. As of the date of this decision, Oller has neither served a responsive brief nor sought leave to extend.
The proper forum for Saunders to have raised his fraud on the court argument would have been in a direct appeal of the permanent order of which he now complains. Instead, at this late date, Saunders chose to attack the order by filing a motion to vacate. The Probate judge did not abuse her broad discretion in denying Saunders's motion under these circumstances.
As to Saunders's claim that the order should have been vacated based on his stated changed circumstances, we see no basis upon which to question the judge's implicit determination that the permanent order remained necessary.
Oller testified at the hearing on Saunders's motion that she remained in fear of physical harm and retaliation from Saunders when he is released from prison. The judge was not required to accept at face value Saunders's representation that he planned to move out of State and have no further contact with Oller after his release. Particularly in light of her lengthy involvement with these litigious parties, the Probate judge exercised sound discretion in denying Saunders's request for relief.
The judge provided no reasoning for her decision to deny the motion.
Order dated October 19, 2011, denying motion to vacate abuse prevention order affirmed.