C.T. v. R.C.

• Court: Massachusetts Appeals Court
• Decided: August 9, 2023
• Docket: 22-P-0244
• Status: Unpublished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

22-P-244

C.T.

vs.

R.C.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the extension of an abuse

prevention order entered on November 9, 2021, in the District

Court. He contends that the District Court judge erred in

granting the extension because there was insufficient evidence

justifying the extension and he was not allowed to present

evidence or cross-examine witnesses. 1 We affirm.

Background. The parties were in a dating relationship for

approximately six months. On November 4, 2019, after an

incident involving the plaintiff resulted in criminal charges

against the defendant, the plaintiff obtained the original

order, which was subsequently extended, after a hearing on

November 7, 2019, for one year. At the November 7, 2019,

1 The plaintiff has not participated in the appeal. hearing, the judge stated that the affidavit had not been

signed, but that he would have the plaintiff sign it. The

defendant has not put the affidavit, signed or unsigned, in the

record appendix. In 2020, the order was extended for another

year after a hearing which the defendant -- who was incarcerated

-- did not attend.

On November 9, 2021, after another hearing, the order was

extended until November 2022. At that hearing, the defendant,

who was incarcerated at the Hampden County house of correction,

appeared by video call over "Zoom," an online video conferencing

platform provided by Zoom Video Communications, Inc. The

plaintiff appeared in person.

The defendant, when asked by the judge whether he opposed

an extension, responded that it was "not [his] burden" but that

he "did want to be physically habed in" that day –- that is,

brought into court through issuance of a writ of habeas corpus -

- and that he had "some documents [he] want[ed] to submit to the

Court." Those documents included "digital documentation,

digital evidence, screenshots and photographs and text

conversations." He asked that the judge "put [the extension

hearing] off until [he could] get a physical habe, perhaps this

week." The judge then reviewed an affidavit from the plaintiff.

Recognizing that the defendant was entitled to present his

evidence, the judge said "Well, what I'm going to do is I'm

2 going to extend the order for a year, but I am going to

authorize without prejudice to [R.C.]. We'll habe you in and

you can present to me whatever documentation you want to show

me." The judge wrote on the abuse prevention order "Extended

w/out prejudice[.] [R.C.] should be habed in to appear on

12/7/21." According to the docket, on the date this order

issued, the judge issued a writ of habeas corpus to have the

defendant brought to court on December 7, 2021. Three days

after the hearing, the defendant filed a notice of appeal.

The docket states that a hearing was held on December 7,

2021, before a second judge. We have no transcript of that

proceeding, nor does the defendant even mention it in his

filings. The docket indicates an abuse prevention order was

issued after that hearing and the defendant was served with it

in hand. The record appendix contains no such order. We infer

that it left the November 9, 2021, extension order before us

undisturbed, though the defendant has provided nothing

indicating whether it reaffirmed that order, superseded it, or

took some other action. The defendant did not notice an appeal

from the December 7, 2021 order.

Discussion. The defendant argues that the initial order

should not have issued and that his due process rights were

violated at the November 9, 2021, extension hearing. He is not

free to now challenge the evidence supporting the initial order

3 in an extension proceeding such as this. See Iamele v. Asselin,

444 Mass. 734, 740 (2005) ("The judge is to consider the basis

for the initial order in evaluating the risk of future abuse

should the existing order expire [but] [t]his does not mean that

the restrained party may challenge the evidence underlying the

initial order"). Nor is this an appeal of the November 2019

extension order, so no question with respect to that order is

properly before us. See C.R.S. v. J.M.S., 92 Mass. App. Ct.

561, 564 (2017) ("[A] defendant is not entitled to relitigate

each stage of the proceedings").

With respect to the November 9, 2021, extension order,

which is properly before us, the defendant argues only that "the

court denied the appellant the right to present evidence and []

an opportunity to be heard on the question of continuing the

order and of granting other relief." He states that "the record

reveals the defendant was not given an opportunity to present

evidence or to call and cross-examination witnesses. The

defendant specifically argued to be present in court. The

defendant explicitly argued for his right to present evidence.

The defendant was not permitted to present evidence.

Incomprehensibly, the court, extended the order without giving

the defendant the opportunity to challenge the extension of the

order with cross-examination of the witness and the presentation

of favorable evidence."

4 The record indicates that, to the contrary, the judge

specifically issued the extension order without prejudice to

allow the defendant the opportunity to appear in person and to

present the evidence he sought to present, which could not be

accommodated on the date of the hearing. The defendant has

provided nothing, not even an assertion in his brief, that the

second hearing did not occur, or that he did not at that hearing

have the opportunity to be present, to present evidence, or to

cross-examine any witnesses. "[I]t is the appellant's

responsibility to ensure that the record is adequate for

appellate review." Roby v. Superintendent, Mass. Correctional

Inst., Concord, 94 Mass. App. Ct. 410, 412 (2018), quoting

Commonwealth v. Woody, 429 Mass. 95, 97 (1999). In the absence

of any evidence of shortcomings in the hearing the judge

scheduled precisely in order to protect the defendant's rights,

and assuming the order before us continued in effect after that

hearing, the defendant has not met his burden to show that the

5 extension order remains in place as a result of any procedural

deficiency.

Order entered November 9, 2021, affirmed.

By the Court (Rubin, Englander & Brennan, JJ. 2),

Clerk

Entered: August 9, 2023.

2 The panelists are listed in order of seniority.