Opinion
15-P-85
03-29-2016
VICTORIA R. SOAL v. JOHN PIMENTEL.
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, acting pro se, appeals from an order issued by a judge in the District Court which permanently extended an abuse prevention order under G. L. c. 209A. He argues that the District Court lacked jurisdiction to extend the order and that the evidence was insufficient to support entry of a permanent order. We affirm.
Background. The plaintiff is the defendant's daughter. Her parents divorced in 2008, when the plaintiff was seventeen. The defendant was not awarded parenting time with the plaintiff, and his contact with her was "limited to correspondence on paper or cards." In 2009, the plaintiff obtained an abuse prevention order against the defendant after he sent a "care package" to her dormitory at Boston College. The plaintiff had changed her last name and taken deliberate steps not to reveal to the defendant where she was attending college. After the order was extended for another year, the defendant appealed. In April, 2011, a different panel of this court affirmed extension of the order in an unpublished memorandum issued pursuant to our rule 1:28. Soal v. Pimentel, 79 Mass. App. Ct. 1110 (2011). In November, 2011, after an evidentiary hearing, a District Court judge ordered entry of a permanent abuse prevention order.
Discussion. The defendant's contentions on appeal require little discussion, as they do not rise to the level of appellate argument. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). "As is within our discretion, we address those arguments which warrant discussion." Zora v. State Ethics Commn., 415 Mass. 640, 642 n.3 (1993).
The District Court judge properly exercised jurisdiction over the plaintiff's request for a permanent order. General Laws c. 209A, § 3, explicitly "empowers a judge in the District Court . . . to issue a permanent protective order at a renewal hearing." Crenshaw v. Macklin, 430 Mass. 633, 633 (2000). "The order issued by the judge [in this case] was within [his] permissible discretion," and our review is limited to whether he abused that discretion. Id. at 636.
We see no abuse of discretion. This court has determined that the evidence presented in support of the 2009 request for an abuse prevention order was sufficient to support extension of the order in 2010. Soal v. Pimentel, supra. The defendant cannot challenge that evidence. Iamele v. Asselin, 444 Mass. 734, 740 (2005). In April, 2011, the defendant issued a subpoena to Boston College, seeking the plaintiff's student records, financial records, employment records, and "[c]orrespondences [sic] of any kind on and about the [plaintiff] that are included in the [plaintiff]'s records from any source, to any destination; the Access Log." The subpoena stated that "it is further ordered that the student SHALL NOT be notified of this Subpoena and or what is disclosed by Boston College personnel." The plaintiff testified that the defendant also has sought her medical records and a DNA sample, and the judge was not required to credit the defendant's assertion that he sought such information in connection with a complaint in Probate and Family Court for modification of his child support obligation. Rather, in light of the defendant's past behavior that formed the basis for entry of the order, the judge could infer that the defendant sought the plaintiff's personal information as a means of harassing her. "The judge had the parties before him and was in a position to observe their demeanor," Vittone v. Clairmont, 64 Mass. App. Ct. 479, 487 (2005), and we will not disturb his apparent conclusion that "[t]hese incidents, appropriately considered in the backdrop of the issuance of the original 209A order, [demonstrated] . . . a continued need for the abuse prevention order." Rauseo v. Rauseo, 50 Mass. App. Ct. 911, 912 (2001).
In May, 2011, a judge in the Probate and Family Court denied a motion by the defendant seeking to terminate his support obligation to the plaintiff and her sister because, during the marriage, they were conceived by in vitro fertilization using a sperm donor. The defendant noted a finding by a probate judge that the defendant was neither the biological nor adoptive father of the children, and he sought removal of his name from their birth certificates. At the November, 2011, hearing on the motion for permanent extension of the c. 209A order, the defendant stated that, "if [the plaintiff] doesn't want the child support, then we can terminate all of the other stuff. It won't really matter to me as far as -- she doesn't want any contact with me, that's great, but [the motion to terminate child support] still exists in the probate court."
Order dated November 18, 2011, permanently extending abuse prevention order affirmed.
By the Court (Cohen, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 29, 2016.