Opinion
No. 15–P–698.
06-10-2016
James RICHARDS v. Jennifer RICHARDS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the permanent extension of a c. 209A abuse prevention order. She argues that the judge abused his discretion when he permanently extended the order, and that the judge applied the wrong legal standard in doing so. She also argues the extension hearing violated her due process rights. When we review an extension of an abuse prevention order, “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), quoting from C.O. v. M.M., 442 Mass. 648, 655 (2004).
“Whether seeking the issuance of an initial protective order or a later extension of that order, ‘[t]he burden is on the complainant to establish facts justifying [its] issuance and continuance.’ ... The inquiry at an extension hearing is whether the plaintiff has shown by a preponderance of the evidence that an extension of the order is necessary to protect her from the likelihood of ‘abuse’ as defined in G.L. c. 209A, § 1.... The judge is to consider the basis for the initial order in evaluating the risk of future abuse should the existing order expire.... Other factors that the judge should consider include, but are not limited to: the defendant's violations of protective orders, ongoing child custody or other litigation that engenders or is likely to engender hostility, the parties' demeanor in court, the likelihood that the parties will encounter one another in the course of their usual activities (e.g., residential or workplace proximity, attendance at the same place of worship), and significant changes in the circumstances of the parties. No one factor is likely to be determinative.... It is 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, that govern.” Iamele, supra at 736, 739–741.
Contrary to the defendant's contention, there is nothing to indicate that the judge applied an incorrect legal standard. In fact, the judge's comments reflect that he employed the statutory definition of “abuse,” G.L. c. 209A, § 1, in making his decision to extend the order: “the conduct which I do find has been done by [the defendant] would lead a reasonable person in [the plaintiff's] position to be in fear for his safety of imminent bodily harm.”
We also discern no abuse of discretion in the judge's application of the legal standard to the facts of this case. Despite an effective c. 209A order, one that already had been extended twice, there was evidence, credited by the judge, that the defendant continued to act in a hostile manner toward the plaintiff. For example, the plaintiff testified to an incident at the Westborough Division of the District Court Department where the defendant directed obscenities at the plaintiff, including calling him a “fucking kidnapper.” This incident in part resulted in the plaintiff filing a contempt complaint in the Probate and Family Court, which could form a basis for the judge to conclude that there was “litigation that engenders or is likely to engender hostility” between the parties. Iamele, supra at 740. The judge also found that the defendant had “repeatedly violated the terms of the order,” a conclusion substantiated by the plaintiff's testimony.
We acknowledge the defendant's point that her behavior appears to have improved after the c. 209A order was in place. It does not follow, however, that the plaintiff has failed to demonstrate a continuing need for the order. The judge was entitled to look to all of the evidence—including the evidence of the defendant's violence toward the plaintiff before the order was issued—when considering whether to extend the order permanently. The fact that the order earlier had proved effective—at least to a degree—does not necessarily mean that it is no longer needed. “The statute itself explicitly provides that ‘[t]he fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order....’ G.L. c. 209A, § 3, as appearing in St.1990, c. 403, § 3. The only criterion for extending the original order is a showing of continued need for the order.” Pike v. Maguire, 47 Mass.App.Ct. 929, 929 (1999).
The defendant also argues that two aspects of the hearing violated her due process rights: the judge's consideration of the plaintiff's affidavit (and exhibits attached thereto), and permitting reference to information contained in the guardian ad litem (GAL) report. “We recognize that there is often an informality to c. 209A abuse prevention proceedings in a busy court. See Frizado v. Frizado, 420 Mass. [592,] 598 [1995] (‘The Legislature devised a procedure in G.L. c. 209A that is intended to be expeditious and as comfortable as it reasonably can be for a lay person to pursue. Judges often must deal with large numbers of these emotional matters in busy court sessions'). Nonetheless, certain minimum standards of fairness must be observed.” S .T. v. E.M., 80 Mass.App.Ct. 423, 429 (2011). “Proceedings held pursuant to G.L. c. 209A are no different than any other adversarial hearings in that each party has a right to present evidence, and the moving party must satisfy the burden of proof and subject its witnesses to cross examination.” C.O., 442 Mass. at 657.
“First, absent serious court congestion or some other emergency, judges should hear and decide scheduled matters if the parties are ready and wish to have a hearing. Second, judges should not issue, or vacate, any part of an abuse prevention order, over objection, without hearing the evidence and giving the parties an opportunity to respond.... Third, G.L. c. 209A gives a choice of forum to the plaintiff. See G.L. c. 209A, § 2. A judge should not, sua sponte and over objection, discontinue an abuse prevention proceeding because he believes it should move to another forum—whether that forum is mediation, a criminal court, or another Trial Court department.... Fourth, each party should be given a fair opportunity to present his case.... While a judge surely may exclude irrelevant or inadmissible evidence, or even interrupt an argument or a witness examination that has become repetitious, he should not terminate a hearing without ensuring that he has heard all the relevant and admissible evidence once.” S.T. v. E.M., 80 Mass.App.Ct. 423, 429–431 (2011).
The defendant's due process rights were not violated. The hearing judge allowed the defendant to call witnesses and to cross-examine the plaintiff's witness. The defendant received the affidavit and its attachments before the hearing. We note that the materials attached to the plaintiff's affidavit consisted largely of statements made by the defendant and, to a lesser degree, statements made to her in response. Moreover, the defendant should have anticipated that an affidavit would be filed. See Guidelines for Judicial Practice: Abuse Prevention Proceedings § 6:08 Commentary (Sept.2011). The judge also took a fifty-minute recess to allow the defendant's counsel to review the GAL report in order to decide whether counsel wanted to question the plaintiff regarding its contents or to admit the report in evidence. For all of these reasons, the defendant's claim of surprise or unfairness therefore rests on soft ground.
The defendant's main objection to the affidavit and its exhibits and to the plaintiff's statements concerning what was told to the GAL was on hearsay grounds. The judge appropriately denied this objection, noting that the rules of evidence do not apply with their usual force in 209A proceedings. See Frizado, supra at 597–598 (in 209A proceedings, “the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on”); Guidelines for Judicial Practice: Abuse Prevention Proceedings § 5:03 (Sept.2011) (“The common law rules of evidence, e.g., those regarding hearsay, authentication, and best evidence, should be applied with flexibility, subject to considerations of fundamental fairness”). Moreover, regardless of whether the defendant made the statements to the GAL or to someone else, they were not hearsay, Mass. G. Evid. § 804(b)(3) (2016). The fact that those statements against interest were related second-hand (either through the plaintiff's testimony or his affidavit) does not render them unreliable.
On appeal, the defendant argues that the GAL report was impounded and, therefore, it could not be used during the hearing below. This objection was not raised below and is waived.
Permanent abuse prevention order entered March 13, 2015, affirmed.