H.Q. v. K.Q.

• Court: Massachusetts Appeals Court
• Decided: October 4, 2023
• Docket: 22-P-1218
• Status: Unpublished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-1218

H.Q.

vs.

K.Q.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a District Court judge's order

extending an abuse prevention order issued under G. L. c. 209A.

He argues that the judge erred by employing an incorrect legal

standard and that the plaintiff failed to meet her burden of

demonstrating a continued need for the c. 209A order. We

affirm.

The parties are married but in the midst of divorce

proceedings. On September 4, 2020, the plaintiff filed a

complaint for a c. 209A order, alleging that the defendant

became violent with their daughter and gave her a concussion. A

temporary c. 209A order issued ex parte, and after a two-party

hearing on September 16, 2020, a judge extended the temporary order for one year. 1 The judge made the following written

findings: "[Plaintiff] says [defendant] was physically violent

[with plaintiff] in the past, she never called the police.

[Defendant] told [plaintiff] what goes on in the house, stays in

the house." On September 10, 2021, after a two-party hearing,

the same judge extended the c. 209A order for an additional

year. The defendant did not appeal from either the first or

second extension order.

On September 9, 2022, a different judge (second judge) held

a third extension hearing. Both parties testified. At the

conclusion of the hearing, the second judge ruled, "Considering

only the . . . credible testimony before me, I will extend this

order for one year." It is from this order that the defendant

appeals.

The defendant first argues that reversal is required

because the second judge did not make findings of fact or

explain what "credible testimony" she relied on in reaching her

decision. Because of this, the defendant urges us to presume

that the second judge "employ[ed] an incorrect legal standard."

His argument is unavailing. We presume that judges correctly

instruct themselves on the law. See Goddard v. Goucher, 89

1 The portions of the order that pertained to the parties' children were later vacated or modified and are not at issue in this appeal.

2 Mass. App. Ct. 41, 49 (2016). Moreover, specific findings are

not required in c. 209A cases so long as "we are able to discern

a reasonable basis for the order in the judge's rulings and

order." G.B. v. C.A., 94 Mass. App. Ct. 389, 396 (2018).

We thus turn to the defendant's second argument that there

was no basis for the second judge's decision to extend the

c. 209A order. Where, as here, the original order was

predicated on actual physical harm, the question for a judge

faced with an extension request is whether there is a "continued

need for an abuse prevention order to protect the plaintiff from

the impact of the violence already inflicted." Callahan v.

Callahan, 85 Mass. App. Ct. 369, 374 (2014). "Among the

nonexclusive factors the judge should consider are 'the

defendant's violations of protective orders, ongoing child

custody or other litigation that engenders or is likely to

engender hostility, [and] the parties' demeanor in court.'"

Id., quoting Iamele v. Asselin, 444 Mass. 734, 740 (2005). We

review a judge's decision to extend a c. 209A order only for an

abuse of discretion or other error of law, according the judge's

credibility determinations "the utmost deference" (citations

omitted). Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 664

(2020).

Based on the evidence presented at the hearing, the second

judge properly found that the plaintiff established a continued

3 need for the c. 209A order. The plaintiff testified to the

defendant's history of violent behavior against both her and the

children. According to the plaintiff, the defendant physically

and verbally assaulted her "many times," and she described a

particular incident where the defendant threw a remote control

at her and then "started to choke" her. The plaintiff stated

that she remained in fear of the defendant. She also described

the contentious nature of the ongoing divorce proceedings and

testified that the defendant had violated a prior c. 209A order

by contacting the parties' son to obtain information related to

those proceedings. The totality of these circumstances

supported the second judge's decision to extend the c. 209A

order for one year. See Callahan, 85 Mass. App. Ct. at 375.

To the extent the defendant argues that the plaintiff's

allegations of abuse were not credible, that argument fails

because an extension hearing is not an opportunity for a

defendant to "challenge the evidence underlying the initial

order." Iamele, 444 Mass. at 740. Furthermore, questions of

credibility are the province of the judge, who has the

opportunity to observe the witnesses. See G.B., 94 Mass. App.

4 Ct. at 395. Here, the second judge implicitly credited the

plaintiff's testimony, and we defer to her determination. 2

Order dated September 9, 2022, extending G. L. c. 209A order affirmed.

By the Court (Wolohojian, Shin & Ditkoff, JJ. 3),

Clerk

Entered: October 4, 2023.

2 In the exercise of our discretion, we deny the plaintiff's request for appellate attorney's fees. 3 The panelists are listed in order of seniority.