A.L. v. C.D.

• Court: Massachusetts Appeals Court
• Decided: August 3, 2023
• Docket: 20-P-0231
• Status: Unpublished

Opinion

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

20-P-231

A.L.

vs.

C.D.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, C.D., appeals from the order denying his

motion to modify a G. L. c. 209A abuse prevention order entered

against him and from the order denying his motion for

reconsideration. 1 We affirm.

Background. On January 21, 2009, the plaintiff filed an

application for an abuse protection order under c. 209A. A one-

day temporary order was entered, and after a series of

extensions, on January 29, 2010, the order was made permanent.

The order required the defendant to stay away from, and not to

contact, the plaintiff and the parties' minor child. In 2013,

the defendant successfully moved to modify the order to

terminate the provisions requiring him to stay away from the

1 The plaintiff did not file a brief. child. In 2017, the defendant's motion to vacate the remaining

portion of the order was denied. The defendant appealed, and a

panel of this court affirmed the order. See A.L. v. C.D., 94

Mass. App. Ct. 1103 (2018).

On August 26, 2019, the defendant moved to modify the abuse

prevention order to make it "mutual." On August 28, 2019, a

judge denied the motion on the ground that the defendant had

failed to show by clear and convincing evidence that the order

was no longer necessary to protect the plaintiff from abuse.

The defendant filed a motion for reconsideration on September

20, 2019, emphasizing that the application of c. 209A in this

case violated his equal protection rights, and that a mutual

order was necessary to protect him from harm. The judge denied

the motion in an order entered on September 24, 2019, stating,

"There is no basis for a mutual order." The defendant appeals.

Discussion. The defendant claims that the judge abused her

discretion and violated his right to equal protection of the

laws when she denied his motion to make the existing order

mutual. We review a judge's decision denying a c. 209A order or

denying a motion to vacate c. 209A order for abuse of

discretion. See MacDonald v. Caruso, 467 Mass. 382, 391 (2014);

S.V. v. R.V., 94 Mass. App. Ct. 811, 813 (2019).

To be entitled to a mutual order, the defendant was

required to establish his own entitlement to relief under

2 c. 209A. "[A]pplications for retaliatory abuse prevention

orders should only be allowed if the predicate conditions are

shown and not as a prophylactic agent to prevent putative

violations." Uttaro v. Uttaro, 54 Mass. App. Ct. 871, 875

(2002). Therefore, the defendant was required to establish that

he was "suffering from abuse." Iamele v. Asselin, 444 Mass.

734, 736 (2005), quoting G. L. c. 209A, § 3. In support of his

motion, the defendant stated that he was "harmed" because the

existing order prevented him from obtaining parole. This is not

the type of harm contemplated by c. 209A. See Iamele, supra at

736-737 ("abuse" under c. 209A involves physical harm,

involuntary sexual relations, or placing another in fear of

imminent serious physical harm); Uttaro, supra at 873 (obtaining

abuse prevention order "requires proof of some act that places

the complainant in reasonable apprehension that force may be

used"; fear of arrest due to plaintiff's selective enforcement

of abuse prevention order insufficient). As the defendant made

no showing of abuse, the judge did not abuse her discretion by

declining to make the order mutual.

As to the defendant's equal protection claim, we discern no

error. His motion for a mutual order was evaluated under the

same definition of "abuse" that was applied to the plaintiff's

application. To the extent the defendant argues that the judges

issuing or extending the original c. 209A order did not properly

3 apply the standard, or erroneously issued the order "simply

because it seem[ed] to be a good idea," Smith v. Joyce, 421

Mass. 520, 523 n.1 (1995), his time to challenge the original

order has long passed. See MacDonald, 467 Mass. at 387-388;

Iamele, 444 Mass. at 742. To modify or terminate the order, the

defendant was required to "show by clear and convincing evidence

that, as a result of a significant change in circumstances, it

is no longer equitable for the order to continue because the

protected party no longer has a reasonable fear of imminent

serious physical harm" (emphasis added). Cordelia C. v. Steven

S., 95 Mass. App. Ct. 635, 639 (2019), quoting MacDonald, supra

at 382-383. The defendant made no such showing. See MacDonald,

supra at 393 (defendant's affidavit stating he had "moved on

with his life" insufficient to demonstrate he had "'moved on'

from his history of domestic abuse and retaliation"). The

possibility that the existing order hurt his chances of

obtaining parole was not a relevant consideration.

Conclusion. The order docketed August 28, 2019, denying

the motion to modify, is affirmed. The order docketed September

4 24, 2019, denying the motion for reconsideration, is affirmed.

So ordered.

By the Court (Massing, Ditkoff & Singh, JJ. 2),

Clerk

Entered: August 3, 2023.

2 The panelists are listed in order of seniority.