Opinion
20-P-1304
03-22-2022
N.S. v. A.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant purports to appeal from the issuance of an ex parte order against him under G. L. c. 209A dated July 3, 2020, though his notices of appeal also appear to bring before us the subsequent order of July 7, 2020, extending the ex parte order after hearing, the denial on August 28, 2020, of a motion to terminate, the denial on August 28, 2020, of a motion to reconsider that denial, and perhaps the denial on October 28, 2020, of a motion to vacate.
The ex parte order entered on July 3, 2020, and was extended after a hearing on July 7, 2020, at which both parties were represented by counsel. Because the defendant is not presently represented by counsel, many of the arguments in his overlength brief are confusing or irrelevant. Thus, for example, despite references made in his brief, the criminal case involving the defendant, and any issues involved in that case, are not before us. The defendant argues primarily that the July 3 ex parte order, which imposed seven restrictions on the defendant, was issued on the basis of fraud, lies, and misrepresentations with respect to his character, including false statements about his employment, and false statements about the events surrounding the disagreement that led to issuance of the order.
If the defendant ultimately is convicted in the criminal case, he may seek review of any issues arising from that case in his appeal from that conviction.
That initial order was, however, issued ex parte, on an emergency basis. Because a defendant has no opportunity to address the allegations in such circumstances, and in light of the requirements of due process, the statute provides for a prompt hearing after notice, at which the plaintiff bears the burden of showing entitlement to an extension of the order. G. L. c. 209A, § 4. See Banna v. Banna, 78 Mass. App. Ct. 34, 35-36 (2010) (burden at subsequent hearing remains with plaintiff). Where an abuse prevention order is initially granted at an ex parte hearing and subsequently extended at a hearing with notice, purported errors in the ex parte order are moot. V.M. v. R.B., 94 Mass. App. Ct. 522, 524-525 (2018) (holding that defendant is not entitled to appellate review of an ex parte abuse prevention order if the order is extended in the trial court at the hearing after notice because that matter is moot).
Turning to the extension order, that hearing was held telephonically in this case, and both parties, represented by counsel, appeared. The defendant's counsel ably represented him, and the defendant and the plaintiff, his wife, testified. The defendant's claims were well put before the judge, who clearly understood that it was the defendant who had filed for divorce, not the plaintiff; that the defendant believed the plaintiff's claims were fabricated because of an upcoming court date in the divorce case; that the defendant was a doctor who worked in Cambridge (indeed, although the transcript was inaudible at one point, we can infer that he informed her that his work in Cambridge was in affiliation with Harvard); that he denied having made physical contact with the plaintiff; that he denied being anything but calm during their encounter; and that his position was that he took and destroyed the screen of his wife's phone (regardless of who actually owned it) in order to preserve the evidence within it. The judge also heard the testimony of a neighbor that the plaintiff had told her that the defendant had not hit her.
But the judge also heard the testimony of the wife that, in their disagreement, the defendant screamed at her and hit her head with his head, before grabbing her phone physically from her hands and destroying its screen with a hammer-like meat tenderizer. The judge was entitled to believe that testimony, and to conclude that the destruction, which the defendant admitted, was not to preserve evidence -- something for which it was not necessary -- but to prevent the wife from calling the police. The judge was entitled to believe as well, as both parties testified, that the parties’ three year old daughter was in the residence during this altercation. And, ultimately, the judge was entitled to conclude that the plaintiff was in reasonable fear of imminent serious physical harm such that, on the basis of the evidence before the judge, the c. 209A order should be extended.
Because the evidence therefore was sufficient to support the judge's extension of the order, it will be affirmed. In terms of defendant's contact with his child, the judge made clear that the order did not preclude the defendant seeking visitation through proceedings in the probate and family court, as explicitly provided for by G. L. c. 209A, § 3.
In light of the evidence presented at the extension hearing, any deficiencies in the case made at the ex parte hearing three days earlier, and we find none, are immaterial. Given the propriety of the issuance of the order at the extension hearing, there was no error in the motion judge's denial on August 28, 2020, of the defendant's motion to terminate the order and subsequent denial that day of the defendant's motion for reconsideration, or in the October 28, 2020, denial of the defendant's motion to vacate. To whatever extent the orders of July 7, 2020, August 28, 2020, and October 28, 2020, are before us, then, they are affirmed.
The docket reflects the issuance of a further extension order on January 7, 2021. Of course, this appeal, noticed long before that order entered, does not address that order.
So ordered.
vacated in part; affirmed in part