Opinion
10-P-1980
10-25-2011
CHERYL ULIANO v. THOMAS TATARIAN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this appeal from the extension of an abuse prevention order, entered pursuant to G. L. c. 209A (209A order), the defendant argues that the plaintiff did not meet her burden of proof and that the judge violated the defendant's right to due process. We affirm.
Background. The plaintiff and the defendant dated for seven months between 2007 and 2008. After two incidents of physical violence, the plaintiff obtained a 209A order. The defendant subsequently broke into her home and was incarcerated for violating the 209A order. On April 8, 2010, after a brief hearing at which the defendant was present, the judge extended the restraining order for one year.
While the 209A order expired in April of 2011, the defendant's appeal is not moot. See Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998).
Discussion. A judge has broad discretion in determining whether to extend a 209A order. See Vittone v. Clairmont, 64 Mass. App. Ct. 479, 485 (2005). We see no abuse of discretion here.
Contrary to the defendant's position, the record supports the judge's implicit finding, based upon the totality of the circumstances, that the plaintiff remained 'in fear of imminent serious physical harm.' See Iamele v. Asselin, 444 Mass. 734, 736-737 (2005). The plaintiff stated that she felt unsafe, explaining that, in addition to the two previous incidents of physical violence, the defendant had violated a prior restraining order by breaking into her home. The judge ''was entitled to credit the testimony of the plaintiff' regarding her fear in the attendant circumstances and 'to accept the reasonableness of her perception of that fear as a potential prelude to physical harm." Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 148 (2006), quoting from Pike v. Maguire, 47 Mass. App. Ct. 929, 930 (1999).
There also is no merit to the defendant's position that the plaintiff's fear was unreasonable because he was incarcerated. Neither the passage of time nor the absence of harm or threat during the defendant's period of confinement made the plaintiff's apprehension patently unreasonable; rather, the salient criterion for extending the order was a showing of continued need. Pike v. Maguire, supra at 929. At the hearing, the defendant, himself, called the judge's attention to his efforts to 'make it to a pre-release,' while, at the same time, the plaintiff told the judge that she did not feel 'safe at all' about 'when [the defendant] gets out.' In deciding to extend the 209A order, the judge could take into account the prospect of the defendant's release and, in light of the history of the defendant's abuse, credit and find reasonable the plaintiff's continued fear.
Finally, the defendant's due process claim fails, as he was present at the hearing and had the opportunity to testify and offer testimony from witnesses. See Pike v. Maguire, supra. Furthermore, the defendant has not made any showing -- nor offered any explanation -- as to what additional testimony or witnesses he would have offered or how it would have made a difference in the case.
Order extending G. L. c. 209A order affirmed.
By the Court (Rapoza, C.J., Cohen & Agnes, JJ.),