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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-358
A.D.
vs.
M.D.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On March 11, 2020, the same day she served the defendant
with her January 2020 complaint for divorce, the plaintiff
obtained an ex parte abuse prevention order under G. L. c. 209A
from the Probate and Family Court with a return date of March
23, 2020. Beginning on March 17, 2020, the Commonwealth's court
houses were closed to the public, and Probate and Family Court
Standing Order 2-20 (2020) (Standing Order 2-20), requiring
virtual hearings by telephone or videoconference "[w]henever
practicable," became effective.1 The 209A order was extended
several times following hearings that were not in person because
of the standing order, and the defendant appeals from two of
1 This standing order instituted temporary changes in court procedure due to the COVID-19 pandemic. See Christie v. Commonwealth, 484 Mass. 397, 399 (2020). those extension orders: one that followed a nonevidentiary
telephonic hearing on August 27, 2020 (August 2020 extension),
and one that entered on February 22, 2021, after an evidentiary
hearing over Zoom (February 2021 extension).
On appeal, the defendant claims that (1) the August 2020
extension order violated his due process rights, and further,
the order was not supported by the evidence because it was based
solely on the representations of plaintiff's counsel; (2) the
evidence in support of the February 2021 extension order did not
show a threat to the parties' two young children such that they
should be included in that order; and (3) neither extension
order should have issued "where the circumstances were simply
situational and where any fear of imminent physical harm no
longer existed." The plaintiff counters that the appeal must be
dismissed because the defendant's notices of appeal were filed
before the extension orders were docketed, and even if the
appeal is properly here, the 209A order was properly extended in
August 2020 and February 2021. We affirm, giving a detailed
recitation of the facts to frame our analysis.
Background. 1. Initial order. A Probate and Family Court
judge issued the ex parte order after a March 11, 2020 hearing
at which the plaintiff appeared but for which we have no
transcript.
2 The ex parte order prohibited the defendant from contacting
the plaintiff or the children, from coming within one hundred
yards of the plaintiff and the children, and required the
defendant to stay away from the marital home and the children's
schools. On March 23, 2020, the parties appeared by phone
before a second Probate and Family Court judge, with counsel,
for the two-party hearing on the plaintiff's request for an
extension.
We do not have a transcript of the March 23 hearing, or the
benefit of findings by the second judge. When extending the
order to May 18, 2020, the same date on which he scheduled a
review hearing in the divorce, the judge stated that it was
modified "per court order of today's date attached hereto and
incorporated by reference." That order, in turn, was the
parties' stipulation to a modification (1) to permit limited
contact and communication between the defendant and plaintiff,
(2) to allow the defendant to come within one hundred yards of
the plaintiff to pick up and drop off the children, and (3) to
allow the defendant contact and supervised parenting time with
the children. On May 20, 2020, nunc pro tunc to May 18, 2020,
the order was extended by the second judge, without modification
and without the parties' appearing, to May 27, 2020. The review
hearing in the divorce was also rescheduled to that date.
3 On May 27, 2020, the parties appeared by phone before the
second judge, with counsel, for an evidentiary hearing on the
plaintiff's request for a one-year extension. Once again, we do
not have a transcript of the hearing or the benefit of findings
by the judge. After the May 27 hearing, the second judge
extended the order "without modification" for three months,
rather than one year, to August 27, 2020, the same day for which
he scheduled a pretrial conference in the divorce proceeding.
2. August 2020 extension. On August 27, 2020, the parties
appeared before the second judge for a third time, with counsel
and over the phone, for the return date of the 209A order and
the pretrial conference in the divorce proceeding. After the
parties were sworn, the plaintiff's counsel requested a six-
month extension of the 209A order, representing that "since the
entry –- the extension of the order back in May, the husband
still is, from the wife's perspective, exhibiting those same
behaviors that he had during the marriage." Counsel continued,
"And I'll give you some examples, and my client can certainly testify. I understand that this isn't an evidentiary hearing, but she's happy to answer some brief questions should the Court require.
"You know, she –- something as simple as trying to select a real estate agent to list the [marital] home. Husband tried to just control every situation. You know, objections to who the wife feels comfortable using.
"Something as simple as there was an issue with the parties' underground sprinkler system, and there were some 15 messages to the wife about it.
4 "So this sort of, you know, need for the husband to control every situation, his lack of patience, his excessive behavior has continued, and that makes the wife think nothing's changed since what she dealt with during the marriage."
The defendant's attorney asked to question the plaintiff,
but the request was denied, with the second judge saying,
"[W]e're not having an evidentiary hearing today. . . . I
believe we had one back in May." Defense counsel then argued
that there was no longer a need for the order because, among
other things, there had been "[n]o problems with the children
with regards to school, medical issues"; no violations of the
order by the defendant; and "no threatening behavior
whatsoever." While he agreed there had been "some disagreements
about issues on emails," the defendant's attorney felt "that all
the communications I represent have been cordial between the
parties." Defense counsel further represented that the
defendant was enjoying quality time with the children, was in
counseling, was agreeable to a parenting coach, and intended to
continue being "very cautious" and "reasonable and accommodating
to" the plaintiff, as he had been by, for example, not watching
the dog at her request without having the order amended and by
staying "as far back as he could" at an outside dance recital on
a hot day so the plaintiff and the children could be in the
shade. Defense counsel suggested that "it's now time for the
5 parties to focus on the well-being of the children and work
toward an amicable resolution to these ongoing divorce and
custody proceedings," and that the defendant was "amenable to
further temporary orders from this Court that include reasonable
ongoing limitations on contact and communications with the
parties." In fact, on August 15, 2020, the parties had agreed
to such limitations, by stipulating that the 209A order could be
modified to allow the defendant to (1) attend more of the
children's events, provided he gave the plaintiff twenty-four
hours' notice, and (2) meet the plaintiff at a mutually agreed
location to exchange the dog.
The second judge modified the order "per [this]
stipulation" and extended it for six months as the plaintiff had
requested. A contemporaneous docket entry stated, "Order
Issued." The defendant filed a notice of appeal of the August
2020 extension order that was stamped "received" by the
register's office on September 8, 2020, but which was not
docketed on that date.
3. February 2021 extension.2 On February 22, 2021, the
parties and their attorneys appeared by Zoom before a third
2 There was a modification of the order in the interim, which entered after a November 5, 2020, telephonic pretrial conference before the second judge in the divorce proceeding. We do not have a transcript of that hearing, but, after it, the 209A order was modified pursuant to another stipulation of the parties to allow the defendant to communicate with the plaintiff about
6 Probate and Family Court judge for the return date of the 209A
order. The plaintiff asked for a one-year extension. One month
earlier, the parties had signed a separation agreement, which
was introduced as an exhibit at the hearing, but was not
included in the record on appeal. Among other things, it
provided for shared legal custody of the children, increased
parenting time for the defendant with "both parties agree[ing]
to drop off the children to each other's residences," and to a
parenting coordinator to act as an "intermediary," one of
several "safety measures . . . so that the parties can minimize
their contact."
At the February 22, 2021 hearing, both parties testified.
After hearing arguments of counsel, the third judge said, "All
right, I've heard you both; I do find that the plaintiff has a
reasonable fear of harm. I am going to continue the order but
I'm not going to continue it for a year; I'm going to continue
it for six months, and I'm going to continue it with the terms
and conditions in accordance with the order submitted in
connection with the divorce." That order struck or amended the
provisions of the 209A order relating to, among other things,
matters before the parenting coordinator and regarding the sale of the marital home; "to reduce the 100 yard distance to permit drop off and pickups for parenting time"; and "to comport with parenting plan in parties['] 10/15/20 stipulation and other agreed upon changes to the parenting plan."
7 custody and visitation with the children, permitted contact
between the parties for events relating to or involving the
children, and allowed the defendant to enter the marital home to
pack and remove his belongings.
The third judge's decision was reflected by a docket entry
stating, "Order Issued." On March 18, 2021, the defendant
served, and soon thereafter the plaintiff received, a notice of
appeal of the February 2021 extension order that was not
docketed on that date and bore no sign of receipt by the
register's office. On April 6, 2021, the parties' divorce
became final, though a judgment did not enter until June 24,
2021.
Effective July 12, 2021, Standing Order 2-20 was
superseded, and court operations returned to in person. See
Probate and Family Court Standing Order 1-21 (2021). In March
2022, nothing having happened on the defendant's appeals of the
August and February extension orders, the defendant filed a
motion to compel assembly of the record. On April 4, 2022, the
notice of appeal of the August 2020 extension order was docketed
along with several other pleadings and orders from 2020 and
2021, including the August 2020 and February 2021 extension
orders, and the record was assembled. Two days later, (1) the
notice of appeal of the February 2021 extension order was
8 docketed by entry stating "filed 3/18/2021," and (2) the
register issued an updated notice of assembly.
Discussion. 1. Jurisdiction. We are not persuaded by the
plaintiff's claim that the appeal must be dismissed because the
defendant's notices of appeal predated the docketing of the
August and February extension orders. The two contemporaneous
docket entries "Order Issued" were sufficient to "enter" the
extension orders for the purpose of starting the time to appeal.
See Commonwealth v. Mullen, 72 Mass. App. Ct. 136, 138 (2008)
(defining "date of entry"). Those entries were not affected by
the register's re-docketing of the orders on April 4, 2022.
Because the "received" stamp on the notice of appeal of the
August extension order established that it was "filed" on
September 8, 2020, see Samuels v. SUFA Corp., 38 Mass. App. Ct.
922, 922 (1995), within the thirty-day period prescribed by
Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019),
we are satisfied that the appeal of the August 2020 extension
order is timely.
There is no similar stamp on the notice of appeal of the
February 2021 extension order, but, when it was finally
docketed, the entry indicated the document was "filed" on the
same day it was served, March 18, 2021, within thirty days of
entry of the February 2021 extension order. Thus, the appeal
from that order is also timely. We will not fault the defendant
9 or the register for court disruptions that seem to have affected
the docketing of orders and filings in this case, especially
where the plaintiff timely received the notice of appeal of the
February extension order and asks us to affirm that order on the
merits.
2. Initial order. Because "[w]e have no transcript of
what transpired" at the March 23 hearing after notice, we
"assume that it focused on the allegations contained in the
[plaintiff]'s complaint and affidavit[]," Brookline v.
Goldstein, 388 Mass. 443, 447 (1983), which were that the
defendant caused physical harm to the plaintiff and made her
engage involuntarily in sexual relations. See G. L. c. 209A,
§ 1 (a), (c) (defining "abuse" to include these acts). We will
also assume that the second judge credited the plaintiff because
he extended the order. Quilla Q. v. Matt M., 102 Mass. App. Ct.
237, 238 n.3 (2023).
There is no evidence regarding the length of extension the
plaintiff requested at the initial March 23, 2020, hearing.
"The Trial Court's guidelines for proceedings under G. L.
c. 209A strongly suggest that an order after notice should be
for a minimum of one year, unless the plaintiff requests a
shorter period or the court finds that a shorter period is
warranted." Moreno v. Naranjo, 465 Mass. 1001, 1002 n.2 (2013),
citing Guidelines for Judicial Practice: Abuse Prevention
10 Proceedings § 6.02 & commentary (Sept. 2011).3 At the same time,
during the pandemic, Standing Order 2-20 mandated that 209A
orders issued at a virtual hearing after notice "be issued only
until such date at which the court can schedule an in-person
hearing." Standing Order 2-20(B)(3). The second judge made no
findings about May 27, 2020, being the first date at which an
in-person hearing could be scheduled, or that extending the
order for two months, to the date of the next event in the
parties' divorce, was reasonably necessary to protect the
plaintiff from further abuse but "an extension of a full year
was not." Moreno, supra at 1003. If the judge based his
decision on factors having to do with the divorce, that was
improper. See id. at 1002. "The exclusive focus must be on the
applicant's need for protection." Singh v. Capuano, 468 Mass.
328, 334 (2014).
3. August 2020 extension. Decisions to extend 209A orders
"must be based on the evidence, after hearings," Singh, 468
Mass. at 335, where each party had "a fair opportunity to
present his case." S.T. v. E.M., 80 Mass. App. Ct. 423, 430-431
(2011). "A meaningful opportunity to be heard includes an
opportunity to address the material and determinative
3 The guidelines were revised after the events at issue here. See Guidelines for Judicial Practice: Abuse Prevention Proceedings (Oct. 2021).
11 allegations at the core of a party's claim or defense and to
present evidence on the contested facts." Idris I. v. Hazel H.,
100 Mass. App. Ct. 784, 788 (2022).
Here, the plaintiff's counsel made factual allegations that
went to the core of the plaintiff's claim of continuing fear,
and which the defendant sought the opportunity to challenge.
The second judge should not have denied that request.
"[A]rguments of counsel are not a substitute for evidence,"
Idris I., 100 Mass. App. Ct. at 789, and it is well settled that
"[a] defendant has a general right to cross-examine witnesses
against him." Frizado v. Frizado, 420 Mass. 592, 597 (1995).
We appreciate that the second judge was grappling with
logistical issues caused by the pandemic, that he did not have
the benefit of our decision in Idris I., and that there could
have been "a tacit agreement" to proceed on August 27 by
representations of counsel, Idris I., supra at 790-791, based on
the statement by the plaintiff's attorney, "I understand that
this isn't an evidentiary hearing." But plainly any such
agreement ended when the defendant asked to question the
plaintiff about her attorney's representations. And nothing in
Standing Order 2-20 authorized extensions of 209A orders without
an evidentiary hearing. See Standing Order 2-20(F). Given the
circumstances, the second judge should not have extended the
order without an evidentiary hearing.
12 The absence of an evidentiary hearing on August 27, 2020 is
not prejudicial, however, because the defendant ultimately
received an evidentiary hearing on February 22, 2021. Contrast
Idris I., 100 Mass. App. Ct. at 789. Thus, the defendant had "a
meaningful opportunity to be heard" on the allegations made by
the plaintiff's attorney on that date, at "a full and fair
hearing" on February 22. See Frizado, 420 Mass. at 598
("Whether a defendant's constitutional rights have been violated
will depend on the fairness of a particular proceeding"). Thus,
we proceed to that order.
4. February 2021 extension. On February 22, 2021, the
plaintiff testified to, and was cross-examined about, her
continuing fear of the defendant based on his entering her
garage at a time when the 209A order required him to stay near
his car, see Rauseo v. Rauseo, 50 Mass. App. Ct. 911, 912 (2001)
(defendant's threats included leaving packages on doorstep in
violation of 209A order), and his "agitated conduct" in meetings
with professionals, including the parent coordinator. Pike v.
Maguire, 47 Mass. App. Ct. 929, 930 (1999). "The Probate Court
judge, who had both parties before h[er] and could observe their
demeanor, was entitled to credit the plaintiff's testimony."
Rauseo, supra. We will not substitute our credibility
determinations for hers. Against the backdrop of the abuse that
gave rise to the order and prior extensions and the "notoriously
13 volatile nature of child custody and visitation battles," Pike,
supra, which "authorities on domestic violence suggest [present]
an increased risk of harm on separation or divorce," Champagne
v. Champagne, 429 Mass. 324, 327 n.2 (1999), "[i]t was not error
[for the third judge] to extend the protective order." Rauseo,
supra. See Iamele v. Asselin, 444 Mass. 734, 741 (2005) ("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").
The defendant claims that the children should not have been
included in the February extension because there was no evidence
he was a threat to them. But that extension order incorporated
the parties' agreement to modify the order "to comport with
[the] parenting plan identified in the parties' Separation
Agreement and any other mutually agreed upon changes," which
included striking so much of the 209A order that related to
custody and permitting the defendant all forms of contact with
the children. Thus, it is not clear to us how the defendant is
restrained above and beyond his own stipulation.
14 Conclusion.4 The orders dated August 27, 2020, and February
22, 2021, extending the G. L. c. 209A order, are affirmed.
So ordered.
By the Court (Ditkoff, Singh & Grant, JJ.5),
Clerk
Entered: March 7, 2023.
4 The plaintiff's request for appellate attorney's fees and costs is denied. "Although the . . . appeal is unsuccessful, it is not frivolous." Perry v. Zoning Bd. of Appeals of Hull, 100 Mass. App. Ct. 19, 25 n.10 (2021), quoting Filbey v. Carr, 98 Mass. App. Ct. 455, 462 n.10 (2020). 5 The panelists are listed in order of seniority.