Opinion
14-P-1834
02-22-2016
T.T.L. v. A.T.L.
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
A.T.L., the husband, appeals from the October 14, 2014, extension of an abuse prevention order. This is the defendant's fourth appeal pertaining to the abuse prevention order and extensions of the order. The basis of the original order was that the husband raped T.T.L., the wife, on numerous occasions. This conduct is identified in G. L. c. 209A, § 1(c), as causing another "to engage involuntarily in sexual relations by force, threat or duress."
In T.T.L. v. A.T.L., 85 Mass. App. Ct. 1116 (2014), we affirmed the April 16, 2013, abuse prevention order. In T.T.L. v. A.T.L., 87 Mass. App. Ct. 1113 (2015), in two companion cases, we affirmed the April 15, 2014, extension of the order and the order denying the husband's motion to terminate and expunge the order.
The husband argues that the requirements of G. L. c. 209A, § 1(b), were not met. As that subsection of the statute is inapplicable, the husband has failed to demonstrate that the judge abused her discretion in extending the order. See Iamele v. Asselin, 444 Mass. 734, 740 (2005) ("judge []considers the basis for the initial order in evaluating the risk of future abuse should the existing order expire"). In support of her request for an extension, the wife submitted a supplemental affidavit and testified. There was credible and sufficient evidence to support the extension order. Id. at 739-741 & n.3. Moreover, where there has been a history of violence and/or forced sexual relations, any contact can induce fear in the victim. See Commonwealth v. Thompson, 45 Mass. App. Ct. 523, 525 (1998).
The husband argues that he was denied due process. The husband had notice and a hearing at which he had a full and complete opportunity to cross-examine the wife, testify, present evidence, and make an argument to the judge. His due process rights were satisfied. Frizado v. Frizado, 420 Mass. 592, 597-598 (1995). See C.O. v. M.M., 442 Mass. 648, 656 (2004) (due process requires that defendant be given an opportunity to testify and present evidence).
The husband also claims that the judge used an incorrect legal standard, but essentially only argues that the wife perjured herself in her application for the complaint and in prior extension hearings. The husband may not use this appeal to challenge the evidence supporting the initial order. Iamele v. Asselin, 444 Mass. at 740. In any event, even if such a claim were permissible, the husband engaged in unrestricted questioning of the wife at the extension hearing about her alleged dishonesty. It is apparent from the judge's order that she rejected the argument.
Again, the husband urges us to terminate the protective order and expunge the record, but he has not filed a motion in the trial court to terminate the order or to expunge the record. There is, therefore, nothing for us to review. In addition, this issue has already been resolved against the husband in one of the husband's previous appeals. See T.T.L. v. A.T.L., 87 Mass. App. Ct. 1113 (2014).
The husband purports to appeal from the judge's order that he pay attorney's fees and costs under G. L. c. 209A, § 3. His notice of appeal, however, did not designate that order as a subject of appeal and it is not, therefore, properly before us, and we do not consider it. Mass.R.A.P. 3(c), as appearing in 430 Mass. 1602 (1999). See G.E.B. v. S.R.W., 422 Mass. 158, 173 n.13 (1996); Robinson v. Boston, 71 Mass. App. Ct. 765, 771 (2008). In any event, reasonable attorney's fees are a proper remedy under G. L. c. 209A, § 3(f), and the defendant has not demonstrated that the judge abused her discretion by allowing the wife's motion for fees and costs.
We agree with the wife that the husband's appellate claims are "frivolous, immaterial or intended for delay" and that she is entitled to an award of appellate attorney's fees and costs. See G. L. c. 211A, § 15; G. L. c. 231, § 6F; Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). See also Rauseo v. Rauseo, 50 Mass. App. Ct. 911, 913 (2001) (allowing appellate attorney's fees and costs in appeal from extension of abuse order where defendant's claims were frivolous). The wife has fourteen days from the date of the rescript to submit a request consistent with the requirements of Fabre v. Walton, 441 Mass. 9, 10 (2004). The husband will have fourteen days thereafter within which to respond.
Order dated October 14, 2014, extending abuse prevention order affirmed.
By the Court (Cypher, Trainor & Rubin, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 22, 2016.