Opinion
15-P-681
04-19-2016
ABDIAS PIERRE v. STEPHANIE PIERRE.
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, Stephanie Pierre, appeals from the extension of a G. L. c. 209A abuse prevention order (extension order) entered in the Dorchester Division of the Boston Municipal Court. We affirm.
The plaintiff did not file a responsive brief in this appeal.
1. Background. On October 29, 2013, the plaintiff, Abdias Pierre, obtained an ex parte abuse prevention order against his wife, Stephanie, after an argument between the two escalated. Both parties appeared for a hearing two days later, and the order was extended for one year. On the one-year hearing date, October 30, 2014, both parties appeared with counsel and each filed an affidavit. After hearing from each attorney, the judge extended the order for an additional six months. Stephanie timely appealed.
As the parties share a surname, we use their first names for ease of reference.
In his affidavit, Abdias reported that Stephanie had bit several areas of his body, causing him to bleed.
Stephanie did not appeal from either of the earlier orders.
2. Mootness. Although the order expired on April 30, 2015, the appeal is not moot, as the order's collateral consequences may continue to affect Stephanie following its expiration. See Frizado v. Frizado, 420 Mass. 592, 594 & n.2 (1995); E.C.O. v. Compton, 464 Mass. 558, 561 n.12 (2013); Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998); Smith v. Jones, 67 Mass. App. Ct. 129, 133 (2006).
3. Extension order. On appeal, Stephanie argues that the judge failed to evaluate whether Abdias had demonstrated, by a preponderance of the evidence, that he was in reasonable fear of imminent bodily harm, that Abdias failed to meet his burden of proof on that issue, and that the judge erroneously shifted the burden to her. See Iamele v. Asselin, 444 Mass. 734, 736-737 (2005). In reviewing a request for extension the judge is to consider "the totality of the conditions that exist at the time that the plaintiff seeks the extension, viewed in the light of the initial abuse prevention order." Id. at 741. We review for an abuse of discretion. Vittone v. Clairmont, 64 Mass. App. Ct. 479, 485 (2005).
At the hearing on the extension order, the judge reviewed the affidavits submitted by both parties, police reports from the underlying incident and a more recent incident involving the custody of their child, and recent text messages the parties had sent to each other. He also heard the arguments and representations of each attorney. Neither party requested an evidentiary hearing.
A review of the transcript of the hearing and the record evidence reveals that the judge was well aware of the appropriate legal standard, and that the evidence was sufficient to allow him to consider both the basis for the initial order and the totality of the circumstances since that time. Iamele v. Asselin, supra at 740. In the absence of a request for an evidentiary hearing, and based on the evidence, the judge did not abuse his discretion in extending the order for an additional six months. Nor did the judge err in inquiring about the practical effect the extension order would have on the parties' domestic difficulties, including their ongoing Probate and Family Court case. See ibid. (one factor, among many, the judge may consider is "ongoing child custody or other litigation that engenders or is likely to engender hostility"). The comments made by the judge, read in the context of the entire proceeding, do not reflect any burden shifting to Stephanie.
Nonetheless, a better practice would have been to elicit testimony from the parties.
Order dated October 30, 2014, affirmed.
By the Court (Blake, Kinder & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 19, 2016.