Opinion
19-P-1690
02-23-2021
R.P. v. J.B.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, J.B., appeals from an order extending an abuse prevention order issued pursuant to G. L. c. 209A, arguing that the District Court judge abused her discretion in granting the extension because the evidence that the defendant committed the "single act alleged" in the plaintiff's affidavit was inadequate, and that the allegations did not rise to the level of a substantial likelihood of immediate danger of abuse. Concluding that the record on appeal is incomplete, and that the absence of the plaintiff's affidavit is fatal to our review of the defendant's appeal, we affirm.
"The standard for obtaining an extension of an abuse prevention order is the same as for an initial order -- 'most commonly, the plaintiff will need to show a reasonable fear of imminent serious physical harm at the time that relief . . . is sought.'" S.V. v. R.V., 94 Mass. App. Ct. 811, 813 (2019), quoting MacDonald v. Caruso, 467 Mass. 382, 386 (2014). "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." S.V., supra, quoting Iamele v. Asselin, 444 Mass. 734, 741 (2005). We review the issuance of such an order "for an abuse of discretion or other error of law." G.B. v. C.A., 94 Mass. App. Ct. 389, 393 (2018), quoting E.C.O. v. Compton, 464 Mass. 558, 562 (2013).
"[I]t is the appellant's responsibility to ensure that the record is adequate for appellate review." Roby v. Superintendent, Mass. Correctional Inst., Concord, 94 Mass. App. Ct. 410, 412 (2018), quoting Commonwealth v. Woody, 429 Mass. 95, 97 (1999). Here, we are unable to determine whether there was sufficient evidence of the incident in question, and consequentially, whether the plaintiff demonstrated a reasonable fear of imminent serious physical harm. The defendant did not provide us with the affidavit supporting the application for the initial abuse prevention order, which detailed the plaintiff's allegations and which counsel for the defendant repeatedly referenced at the hearing. See Cordelia C. v. Steven S., 95 Mass. App. Ct. 635, 637 n.5 (2019) (where neither party provided court with affidavit in support of their requests for abuse prevention order, it was appellant's obligation "at least to provide the affidavit she had filed in support of her own complaint"); Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019). "[T]he burden is on the appellant . . . to furnish a record that supports his [or her] claims on appeal." Hasouris v. Sorour, 92 Mass. App. Ct. 607, 610 n.4 (2018), quoting Arch Med. Assocs. v. Bartlett Health Enters., Inc., 32 Mass. App. Ct. 404, 406 (1992). Accordingly, where we do not have the affidavit supporting the plaintiff's application for the initial abuse prevention order, we are unable to conclude that the judge abused her discretion in extending that order.
As the defendant requests attorney's fees pursuant to G. L. c. 152, § 12A, which provides for an award of attorney's fees to an employee who prevails on an appeal in a workers' compensation case, the request for attorney's fees is denied.
Order extending abuse prevention order affirmed.
By the Court (Lemire, Ditkoff & Grant, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: February 23, 2021.