NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
17-P-1587 Appeals Court
L.L. vs. M.M.
No. 17-P-1587.
Barnstable. October 11, 2018. - March 7, 2019.
Present: Green, C.J., Hanlon, & Maldonado, JJ.
Abuse Prevention. Protective Order. Due Process of Law, Abuse prevention, Burden of proof. Assault and Battery by Means of a Dangerous Weapon. Practice, Civil, Judicial discretion, Burden of proof.
Complaint for protection from abuse filed in the Orleans Division of the District Court Department on September 23, 2000.
A motion to terminate an abuse prevention order, filed on September 6, 2016, was heard by Robert A. Welsh, III, J.
Genevieve K. Henrique for the defendant. L.L., pro se.
HANLON, J. After a hearing, a District Court judge denied
the defendant's motion to terminate a permanent abuse prevention
order issued pursuant to G. L. c. 209A (209A order).1 The
1 The defendant's motion was titled "motion to vacate"; however, in this court, he clarified his position, stating that 2
defendant appeals, arguing that the judge abused his discretion
because, in the defendant's view, he proved that there had been
a significant change of circumstances and, as a result, the
plaintiff no longer had a reasonable fear of physical harm from
him. For that reason, he contends that it is no longer
equitable for the 209A order to remain in place. We affirm.
Background. This case began with an emergency ex parte
209A order issued on September 23, 2000, a Saturday. See G. L.
c. 209A, § 5. The judge ordered the defendant not to abuse the
plaintiff, not to contact her directly or indirectly, and to
stay one hundred yards away from her and her children. He also
ordered the defendant to immediately surrender to the local
police department all "guns, ammunition, gun licenses and FID
[firearms identification] cards." An order providing
essentially the same relief was issued ex parte by another judge
in the District Court on the following Monday, September 25,
2000, and a hearing after notice was scheduled for October 2,
2000.
At the time, the parties had been married for approximately
two and one-half years. According to the plaintiff's affidavit
"the relief the defendant sought was not to vacate the original order but to terminate the current order due to a significant change of circumstances since the order had been made permanent." See MacDonald v. Caruso, 467 Mass. 382, 384 n.4 (2014). 3
filed in support of her complaint,2 the defendant had threatened
her in the past "that if [she] divorced him he would see [her]
dead first. He ha[d] also been physically and sexually abusive
of [her] in the time [they] were living together." On Saturday,
September 23, the affidavit continued, the defendant stopped by
the plaintiff's house and became argumentative with her and her
older child. The plaintiff told him to leave, but he refused
"and continued to argue and yell. Finally when both [of her]
children, ages 7 and 11, and [she] told him to get out and never
come back[,] he became even more irate and grabbed a dozen roses
out of a vase," hit her in the face with them, and then left the
house. She went outside and threw the roses at his car. "He
then spun tires and gravel (with many neighborhood children
present at [the] side of [the] driveway) and went out of the
driveway." The plaintiff then returned to her house, "[a]t
which time he returned into [the] driveway and aimed his vehicle
at [her] 11 year old daughter and tried to run her over. This
was witnessed by many children and adults across from [her]
home." She continued, "We are all quite afraid of what he may
2 Neither party provided this court with the affidavit; we obtained a copy from the District Court. We note that, as the defendant was the appellant, it was his obligation to include the affidavit in the record. See Mass. R. A. P. 18 (a), as amended, 425 Mass. 1602 (1997). "[A] plaintiff shoulders no burden at a termination hearing and is entitled to rest on the finality of the order." MacDonald, 467 Mass. at 391. 4
attempt to do, if he has lost it enough to retaliate against a
child with a vehicle."
On the same day as the ex parte hearing, September 25,
2000, the defendant was arraigned in the District Court on
charges of assault by means of a dangerous weapon and assault
and battery by means of a dangerous weapon.3 He was served in
hand with a copy of the 209A order and a return of service was
filed with the court on September 26, 2000.
At the hearing after notice on October 2, 2000, the 209A
order was extended until October 2, 2001; the face of the order
indicates that the defendant was present, and the "no contact"
provision of the order was amended to provide that "th[e]
defendant remain 300 feet away from the plaintiff," as opposed
to the one hundred yards provision specified in the emergency
209A order. In addition, the judge specified that "the order
3 The defendant later pleaded guilty to the charge of assault by means of a dangerous weapon, and he was placed on probation for one year. The police report contained in the record reveals that both the plaintiff's eleven year old daughter and a neighbor corroborated the plaintiff's account of what had happened. The daughter told the police officer that she, too, had thrown flowers at the defendant's vehicle as he was backing up and that he then "put the vehicle into drive and drove at her. She state[d] she had to jump behind a tree or he would have hit her." A witness from across the street said that he saw the girl throw flowers at the vehicle and "he then observed the vehicle pull forward and drive at the young girl. The girl ran behind a tree. [The witness stated] that if the girl did not move as fast as she did the vehicle would have struck her." 5
shall not be construed so as to prevent either party from using
the ways of the town to enter or [leave] his or her home." On
October 2, 2001, with both parties present, the 209A order was
extended without modification until April 2, 2002.4 On April 2,
2002, the 209A order was amended to reflect a change in the
plaintiff's name, and the order was made permanent.5
Approximately fourteen years later, on September 6, 2016,
the defendant filed the motion at issue here, seeking to
terminate the 209A order because of a change of circumstances.
In his affidavit in support of the motion, the defendant
represented that he had had no contact with the plaintiff since
4 The record also contains the defendant's Court Activity Record Information (CARI), which reveals that, in addition to his conviction of assault by means of a dangerous weapon, the defendant was convicted of five violations of the 209A order based on incidents occurring in 2000 and 2001, and shown on the CARI report with dates of October 6, 2000, October 17, 2000, and October 2, 2001. On the three cases related to the October 6, 2000 date, the convictions were placed on file with the defendant's consent. Similarly, the conviction related to the October 17, 2000 date was also placed on file. For the last conviction related to the October 2, 2001 CARI entry, the defendant received a sentence of thirty days in the house of correction. There are no subsequent criminal charges on the defendant's Massachusetts CARI report. In addition, the record appendix contains a criminal history from the National Crime Information Center (NCIC), showing no subsequent arrests recorded from anywhere in the United States.
5 The defendant was not present at the April 2, 2002, hearing; however, as we have indicated, he had been served in hand with a copy of the order setting that date for the hearing. In addition, the return of service in the record indicates that he received a copy of the 209A order "in hand" the next day, April 3, 2002. 6
"on or about August, 2001." He now lives in Nevada and has been
married to another woman since 2010. His current wife is from
the Philippines and she has dual citizenship; the couple travel
to the Philippines at least once a year. He is "stopped by U.S.
Customs and Border Officials almost every trip" and "detained
for approximately 45 minutes." Further, the defendant is
employed as a commercial truck driver for a company that
"performs a majority of its work on Federal Government worksites
and for Prisons." As a result of the 209A order, neither the
defendant nor the company that employs him is "allowed to work
on certain" government or prison worksites.6
As noted, both parties were present for a hearing on the
defendant's motion on September 22, 2016. The defendant was
represented by counsel; the plaintiff appeared pro se,
accompanied by a civil advocate. The parties have stipulated
that "[t]he transcript prepared from the . . . tape in this
6 The defendant's representations are corroborated in the record appendix by a copy of a Nevada commercial driver's license in his name; a Nevada marriage certificate indicating his 2010 marriage to his current wife; a pay stub, indicating his employment with the trucking company; and a letter on the trucking company's stationery, from the owner of the company, dated September 12, 2016, reciting that the defendant has been a "valued employee" for six years and reiterating the fact that the defendant has been refused entrance to Federal property, including military bases, and to State penitentiary property because of the outstanding 209A order. The letter also states that the issue is a "burden on [the] company" and "costly" when the defendant cannot do that work. 7
matter begins with the proceedings already in progress and is
approximately 4 pages in length." Unfortunately, the transcript
begins near the end of the plaintiff's testimony, and the
defendant's lawyer repeatedly interrupted the testimony that
appears in the transcript. However, the transcript reveals that
the plaintiff did testify to the following at least: "[T]hat
piece of paper is the only thing that keeps me from looking over
my shoulder 24/7; and it has for 14 years, and I'd like to keep
it that way." When the judge asked, "You're still in fear of
him?" the plaintiff responded, "Unh-huh, because I don't know
what he would do next. I never do. He violated the order
numerous times for years, and it took a long time to get -- and
then, now I'm here again when I shouldn't be here." At that
point, the defendant's lawyer interrupted to say, among other
things, that "some of the violations . . . that was before it
became permanent." The plaintiff responded that the defendant
had screamed and yelled at her outside the court house following
an earlier hearing "for being in here and taking him to court"
and that "[h]e would follow us numerous times, everywhere we
went."
The five-page stipulation submitted by the parties "as to
the unrecorded portion of the electronic recording of the
hearing" was approved by the judge. The only references to the
plaintiff in the stipulation state that she appeared pro se, 8
accompanied by a representative from "Independence House," and
that she "did oppose the Motion and stated that she was still in
fear of [the defendant] and was always looking over her
shoulder." The stipulation also reiterates that the plaintiff
"informed [the judge] that she was still in fear for her life."
The balance of the stipulation contains the defense attorney's
representations and argument about the defendant's situation and
the inconvenience that the permanent 209A order causes him.
Neither the defendant nor his current wife testified at the
hearing.
Discussion. The issue is whether the judge abused his
discretion when he denied the defendant's motion to terminate
the 209A order. We therefore ask whether "the judge made 'a
clear error of judgment in weighing' the factors relevant to the
decision, such that the decision falls outside the range of
reasonable alternatives" (citation omitted). L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
A defendant who seeks to terminate a permanent 209A order
"must 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."
MacDonald v. Caruso, 467 Mass. 382, 382-383 (2014). The court's 9
analysis in MacDonald provides a framework for our consideration
of whether the defendant has met that burden here.
At first glance, the facts are similar to those in
MacDonald. There, the defendant argued that the 209A order was
twelve years old; he had moved from New York to Utah; he had
remarried in 2004 and retired from "the business world, and
. . . clearly moved on with his life." MacDonald, 467 Mass. at
384. Here, the 209A order is eighteen years old; the defendant
has moved to Nevada and remarried. He contends that he has
moved on with his life.
In MacDonald, the court agreed that the distance between
the parties was a relevant consideration, citing Iamele v.
Asselin, 444 Mass. 734, 740 (2005), for the principle that "in
evaluating [the] risk of future abuse, [the] judge should
consider 'the likelihood that the parties will encounter one
another in the course of their usual activities.'" MacDonald,
467 Mass. at 392, quoting Iamele, supra. The court also agreed
that the defendant's marriage to another woman for ten years
corroborated his contention that he had "moved on with his
life." Id. at 393.
However, the court in MacDonald, 467 Mass. at 393, also
stressed that "the defendant rested his motion to terminate
solely on his own attestations in his verified motion. He did
not submit an affidavit from the chief of police or the keeper 10
of the records of his city in Utah attesting that the police had
no record of any allegations of domestic abuse, or submit the
New York and Utah equivalents of the Massachusetts criminal
offender record information (CORI) and Statewide registry of
civil restraining orders records to show the absence of arrests
or convictions or other restraining orders. To prove that he
had truly 'moved on with his life,' the defendant in this case
needed to demonstrate not only that he has moved on to another
relationship but that he has 'moved on' from his history of
domestic abuse and retaliation."
In the present case, while the defendant did submit
criminal record information from both Massachusetts and NCIC,
there is no affidavit from local police, and no affidavit or
testimony from his current wife. On this record, it is
impossible to say whether the defendant has resolved his
problems with domestic abuse or merely become more adept at
hiding them. Also, as noted, the defendant himself did not
testify or submit to cross-examination on the issue of whether
he had been abusive in subsequent relationships; the judge would
have been warranted in drawing a negative inference from that
failure. See Singh v. Capuano, 468 Mass. 328, 333 (2014);
Frizado v. Frizado, 420 Mass. 592, 596 (1995); M.G. v. G.A., 94
Mass. App. Ct. 139, 143 (2018). 11
Further, in MacDonald, 467 Mass. at 388-389, the court
specifically refused to draw an inference from the passage of
time, stating that "[t]he significant change in circumstances
must involve more than the mere passage of time, because a judge
who issues a permanent order knows that time will pass.
Compliance by the defendant with the order is also not
sufficient alone to constitute a significant change in
circumstances, because a judge who issues a permanent order is
entitled to expect that the defendant will comply with the
order. See G. L. c. 209A, § 3 ('The fact that abuse has not
occurred during the pendency of an order shall not, in itself,
constitute sufficient ground for . . . allowing an order to
. . . be vacated')." Of course, in this case, at least in the
time immediately following the issuance of the 209A order, there
were repeated violations.
In addition, while in MacDonald the plaintiff did not
appear at the hearing on the defendant's motion to terminate the
209A order,7 here the plaintiff did appear to oppose the motion
and did so strenuously. Despite the meager record, that
opposition, and her continued fear for her safety, come through
7 Even so, the court in MacDonald, 467 Mass. at 391, declined to weigh that fact in the defendant's favor, reiterating that "a judge cannot know whether silence reflects acquiescence in the termination or continued fear of the defendant." 12
clearly. Where that fear is based on an incident in which the
defendant attempted to strike the plaintiff's daughter with a
motor vehicle and then proceeded to violate a 209A order five
times, we cannot say that the judge erred in finding that fear
reasonable.
In MacDonald, 467 Mass. at 392, the court specifically
declined to consider the collateral consequences that a
defendant may suffer from an abuse prevention order. The
defendant in this case argues that the collateral consequences
to him are considerable, and he supports that argument with a
letter from his employer and other documents; on this record, we
accept that representation as accurate. However, in MacDonald,
the court stressed that collateral consequences "are not
relevant to the judge's decision regarding termination of the
order." Id. "Where a defendant has failed to meet his burden
to terminate an abuse prevention order, the order shall not be
terminated, regardless of how onerous the collateral
consequences, because the only relevant issue is the safety of
the plaintiff. See Moreno v. Naranjo, 465 Mass. [1001,] 1003
[2013] (judge may not 'rely on considerations irrelevant to the
plaintiff's need for protection' in deciding whether to extend
abuse prevention order). Where that burden has been met, the
order should be terminated, because its prospective application
is no longer needed to protect the plaintiff, and even if there 13
were no collateral consequences, it is no longer equitable for
the order to remain in force . . . . Cf. id. at 1002 (nothing
in G. L. c. 209A authorizes judge to limit duration of abuse
prevention order 'out of concern for the defendant's visitation
rights')." MacDonald, supra.
Finally, the court in MacDonald referred in a footnote to
factors deemed relevant by other jurisdictions in considering
similar motions and suggested some additional factors that might
be relevant to the issue of whether the defendant had met his
burden. These include "the restrained party's alcohol and drug
involvement, if any . . . [the] age and health of the restrained
party . . . [and] whether the victim is acting in good faith to
oppose the motion." MacDonald, 367 Mass. at 393 n.9. The court
observed that, in some circumstances "affidavits regarding the
successful completion of mental health . . . or substance abuse
counselling might be relevant in determining whether a defendant
has met his burden of proof." Id. Another relevant
consideration might be an affidavit attesting to successful
completion of an intimate partner abuse education program.
Nothing in this record indicates that any of these factors
support the defendant's argument.
On the record before it, the court in MacDonald, 367 Mass.
at 394, concluded that "the judge did not abuse her discretion
in finding that the defendant failed to meet his burden of 14
proving by clear and convincing evidence that, as a result of a
significant change in circumstances, the plaintiff no longer
ha[d] a reasonable fear of imminent serious physical harm. [The
court], therefore, affirm[ed] the judge's denial of the
defendant's motion to terminate the abuse prevention order." So
too here, in sum, the defendant has shown that he has moved away
and remarried and that there have been no violations of the 209A
order since the five violations in 2000 and 2001. On that
showing, without more, and in light of the plaintiff's evident
continuing reasonable fear of abuse by the defendant, we cannot
say that the judge abused his discretion when he denied the
motion to terminate the 209A order. We therefore affirm.
So ordered.