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-1141
N.S.
vs.
A.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, A.S., appeals from a District Court judge's
entry in January 2022 of a permanent abuse prevention order
under G. L. c. 209A at the request of A.S.'s former wife, N.S.
A.S. argues that the court lacked jurisdiction, that the order
deprived him without due process of his liberty interest in his
relationship with the parties' child, and that N.S. failed to
show a need for a permanent order. Reviewing "for an abuse of
discretion or other error of law," E.C.O. v. Compton, 464 Mass.
558, 562 (2013), we affirm the permanent order.
Background. In A.S.'s prior appeal, a panel of this court
(1) dismissed as moot A.S.'s challenge to the ex parte c. 209A
order that issued on July 3, 2020; (2) affirmed the subsequent
order of July 7, 2020 (July 7 order) extending the ex parte
order for six months after an evidentiary hearing; (3) affirmed orders entered in August 2020 denying A.S.'s motion to terminate
the c. 209A order and motion to reconsider that denial; and (4)
affirmed an order entered in October 2020 denying A.S.'s motion
to vacate. N.S. v. A.S., 100 Mass. App. Ct. 1128 (2022).
The July 7 order affirmed in the prior appeal was based on
N.S.'s testimony about events occurring a few days earlier, on
July 3, 2020. She testified that during an argument in the
presence of the parties' then three year old child, A.S. bumped
N.S.'s head with his head, grabbed the cell phone on which she
had just recorded part of their interaction, and smashed it with
a meat tenderizer. N.S. further testified that A.S. had grabbed
her arm during an argument a year earlier and given her bruises,
had her grabbed her forearm again during an argument a few
months earlier, and recently spat in her face when she told him
she had hired an attorney in connection with the divorce action
he commenced against her. N.S. testified that she was in fear
both of harm to herself and of "harm and trauma" to the child
from having been exposed to A.S.'s conduct. On this basis, a
judge1 issued a c. 209A order that included "no contact" and
"stay away" provisions and awarded custody of the child to N.S.2
1 The judge who issued the July 7 order was not the same judge who issued the permanent order in January 2022. 2 A temporary custody order was also entered in the divorce
action. A.S.'s appeal from the subsequent judgment of divorce nisi is the subject of a separate decision issued today, A.S. v.
2 A.S. was also charged with domestic assault and battery and
other offenses as a result of the incident.3
In January 2021, while the appeal from the July 7 order was
pending in this court, a different District Court judge extended
the c. 209A order for an additional year after a hearing
attended by both parties and their counsel.4 In November 2021,
in the divorce action, a Probate and Family Court judge entered
a judgment of divorce nisi that awarded N.S. physical and legal
custody of the child but allowed A.S. to have supervised
parenting time, as well as limited electronic contact with N.S.
about matters concerning the child. That judge then modified
the c. 209A order to include the same provisions, as authorized
by G. L. c. 209A, § 3. In January 2022, after an in-person
hearing attended by N.S., her counsel, and A.S. (representing
N.S., Mass. App. Ct., No. 22-P-434, and we take judicial notice of the record in that appeal. See Jarosz v. Palmer, 436 Mass. 526, 530 (2002) (court may take judicial notice of records in related case). 3 We take judicial notice that A.S. was convicted of malicious
destruction of property and that his appeal from that conviction is pending in this court. 4 The judge who issued the January 2021 order was also not the
judge who issued the permanent order in January 2022. The January 2021 order is not before us. Although A.S. has included in his record appendix what appears to be a notice of appeal from that order, dated January 15, 2021, no such notice was ever docketed. We nevertheless address A.S.'s arguments regarding the January 2021 order to the extent that the issuance of that order is relevant to the current appeal.
3 himself), another District Court judge made the c. 209A order
permanent. A.S. now appeals.
Discussion.5 1. Jurisdiction. A.S. asserts that, for
three separate reasons, the District Court lacked jurisdiction
to issue any c. 209A order against him. We are unpersuaded.
First, A.S. argues that, after the initial ex parte order
was issued by an on-call judge from another District Court,
acting under G. L. c. 209A, § 5, the clerk-magistrate of the
court to which the on-call judge was assigned failed to certify
the order to the court having venue and jurisdiction over the
matter -- here, the District Court in the parties' town. A.S.
claims that such certification was necessary under G. L.
c. 209A, § 5, in order to confer jurisdiction and commence
proceedings under c. 209A, and thus that this action was never
properly commenced.
A.S. cites no authority, however, for his claim that such a
certification is "jurisdictional." Nor is it the only way of
commencing a c. 209A action. Such an action may also be
commenced by filing a complaint. See G. L. c. 209A, § 3.
Although A.S. claims that N.S. never filed a complaint, the
5 We decline to address numerous issues raised in the "Statement of Facts" section of A.S.'s brief that either were resolved by or could have been raised in the prior appeal. Apart from the assertedly jurisdictional issues related to the commencement of this action, we address only those issues that arose after the orders affirmed in the prior appeal.
4 docket here reflects that a complaint was filed on July 6, 2020.6
A.S. has included a partial, unsigned copy of the complaint in
his record appendix,7 as well as a c. 209A affidavit signed by
N.S. on July 3, 2020, which was witnessed by a police officer
and recounted the same events N.S. testified to at the July 7
hearing. Even if the complaint that was filed was unsigned, it
was not a nullity. Rather, our rules provide merely that an
unsigned pleading "may be stricken" (emphasis added). Mass. R.
Civ. P. 11 (a) (1), as appearing in 488 Mass. 1403 (2021). This
stands in sharp contrast to the Federal rule, which states that
"[t]he court must strike an unsigned paper unless the omission
is promptly corrected after being called to the attorney's or
party's attention" (emphasis added). Fed. R. Civ. P. 11(a). We
6 If A.S. wished to controvert the docket entry showing that a complaint was filed, the burden was on A.S. to seek correction of the record under Mass. R. A. P. 8 (e) (2), as appearing in 481 Mass. 1611 (2019). He did not do so, and we treat the docket entries transmitted to us as accurate. See Mass. R. A. P. 9 (a) (1), as appearing in 481 Mass. 1615 (2019) ("Upon the filing of a notice of appeal, the clerk of the lower court shall promptly review the file and ensure the accuracy of the docket entries"). See also Adoption of Ursa, 103 Mass. App. Ct. 558, 565 (2023) (uncontroverted docket entries conclusive). 7 Whether this is an accurate copy of the original in the
District Court clerk's possession cannot be determined based on the contents of the record appendix filed by A.S. And it is "a fundamental and long-standing rule of appellate civil practice" that the appellant has an obligation "to include in the appendix those parts of the [record that] are essential for review of the issues raised on appeal." Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992).
5 conclude that this action was properly commenced by the filing
of the complaint.8 We therefore need not reach A.S.'s various
other arguments premised on his claim that no valid complaint
was filed.
A.S.'s second basis for claiming that the court lacked
jurisdiction is that N.S. did not file the affidavit that A.S.
asserts is required in child custody proceedings by G. L.
c. 209B, § 3 (a). "Chapter 209B provides guidelines to
determine when a Massachusetts court may exercise jurisdiction
over an initial child custody proceeding." Custody of Brandon,
407 Mass. 1, 5 (1990). It has no application to "[a] G. L.
c. 209A order entered in a court other than the Probate and
Family Court," because such orders "may not decide custody."
Smith v. Joyce, 421 Mass. 520, 523 (1995). Even if we assume
for purposes of argument (1) that the affidavit requirement
applies to c. 209A proceedings in which child custody may be at
issue and (2) that the affidavit and complaint here, taken
together, did not substantially provide the information required
by G. L. c. 209B, § 3 (a), A.S. nevertheless cites no authority
for his claim that the filing of such an affidavit is
8 We further note that A.S. has not identified any prejudice to him from any defect in the filing of the complaint. The transcript leaves no doubt that, at least as of July 7, 2020, he was fully aware of the terms of the order and of N.S.'s statements that led to its issuance.
6 jurisdictional. The jurisdictional requirements of c. 209B
appear in a different section, G. L. c. 209B, § 2, which
primarily concerns resolution of questions regarding which
State's courts may make child custody determinations. The
section requiring the affidavit provides only that "[t]he court
may impose sanctions against any party who fails to act in
conformity with this section without leave of court granted for
good cause shown" (emphasis added). G. L. c. 209B, § 3 (f). We
conclude that any claimed defect in the affidavit filed by N.S.
did not deprive the District Court of jurisdiction.
A.S.'s third argument is that the District Court lacked
jurisdiction to extend the c. 209A order during the time the
prior appeal was pending in this court. That is not the law.
Although a judge generally "lack[s] the authority to amend the
judgment after the appeal had been entered in this court and we
obtained jurisdiction," Kelso v. Kelso, 86 Mass. App. Ct. 226,
229 n.7 (2014), "this rule does not apply in the sui generis
context of c. 209A abuse prevention orders," Quinn v. Gjoni, 89
Mass. App. Ct. 408, 411 (2016).9
9 Although a judge suggested in an October 2020 ruling that he could not address a particular motion because the case was on appeal, he appears to have been mistaken. In any event, the judge also denied the motion in question, and it is that ruling that was affirmed by the prior panel.
7 2. Due process. A.S. next asserts that he was deprived
without due process of his liberty interest in his relationship
with his child. Again, we are unpersuaded.10 We address A.S.'s
procedural claims in order, deferring until later our discussion
of the evidence supporting the order.11
First, A.S. complains that in January 2021, during the
COVID-19 pandemic, he was not afforded an in-person hearing, but
only a Zoom hearing, on whether the c. 209A order should be
extended by one year.12 This was not a per se due process
10 Because it could have been raised in the prior appeal, we decline to address A.S.'s claim that he was barred from speaking in his own defense at a July 6, 2020 hearing on the c. 209A order. Notably, however, that hearing was merely continued until the next day so that A.S.'s newly-retained counsel could participate. The next day, with counsel present by telephone, A.S. testified. A.S. also complains that on July 6, 2020, without proper notice, he was arraigned on criminal charges arising out of the incident with N.S. and then was improperly subjected to conditions of release that mirrored the c. 209A order. Those issues could have been raised in the criminal case, the appeal from which is pending. They are not before us here. 11 Pursuant to G. L. c. 209A, § 3, the custody-related provisions
of the c. 209A order are controlled by the divorce judgment issued by the Probate and Family Court, which is the subject of A.S.'s other appeal decided today. See note 2, supra. Thus, since November 2021, the c. 209A order has provided among other things that, although N.S. has custody, A.S. has the right to biweekly supervised visitation with the child. Insofar as the c. 209A order merely conforms to the divorce judgment, A.S.'s challenge to those portions of the order is effectively governed by the affirmance of that judgment. 12 A.S. also complains that hearings in July, August, and October
2020 were held remotely rather than in person. The orders issued as a result of those hearings were affirmed in the prior appeal; further nonjurisdictional challenges to those orders are
8 violation, see Adoption of Patty, 489 Mass. 630, 642 (2022), nor
has A.S. shown that the hearing as conducted violated due
process. The hearing transcript contains no objection on his
part to a Zoom hearing. The transcript further reflects that
A.S. was represented by counsel, who was offered and declined an
opportunity to cross-examine N.S. on her reasons for seeking an
extension of the c. 209A order, as set forth both in her
affidavit dated December 28, 2020,13 and as proffered by her
counsel at the hearing. A.S.'s counsel was also offered an
opportunity to call A.S. as a witness, but counsel declined and
instead chose to give a detailed proffer of A.S.'s testimony.
Second, A.S. claims that counsel for N.S. misrepresented
material facts at various hearings. We have carefully examined
those portions of the record cited by A.S. and conclude that, to
the extent any objections to such representations were preserved
not now before us. A.S. further asserts that various docket entries erroneously indicate that hearings occurred in person when they were actually held remotely, and that the judge who entered the permanent c. 209A order erroneously relied on such a docket entry to conclude that A.S. had "had [his] day in court multiple times." We have reviewed the docket entries and see nothing in them that could have misled the judge as to the nature of the prior hearings, nor do we read the transcript of his comments to reflect any misunderstanding on his part. 13 The affidavit is repeatedly mentioned in the hearing
transcript, which makes clear that the judge presiding at the January 2021 hearing and both parties had copies of the affidavit, but A.S. has not included it in his record appendix here. We have taken judicial notice of the affidavit as appearing in the record appendix filed by A.S. in the prior appeal.
9 for appeal, A.S. has not shown that any of them have merit.
A.S. also claims that at the January 2022 hearing resulting in
the permanent order, counsel for N.S. was improperly permitted
to "testify" without having been sworn as a witness. It was,
however, within the judge's discretion to entertain
representations of counsel, as an officer of the court, just as
a judge at the January 2021 hearing did for A.S.'s own counsel.
Cf. Frizado v. Frizado, 420 Mass. 592, 597-598 (1995) (rules of
evidence need not be followed during c. 209A proceedings); Mass.
G. Evid. § 1106 (2023) (similar). After reviewing the
transcript of the January 2022 hearing, we are confident that
the judge was able to give those representations appropriate
weight. The transcript also makes clear that the judge afforded
A.S. a fair opportunity to respond, which A.S. squandered by
repeatedly digressing into procedural matters irrelevant to
whether there was a need to extend the order.
Third, A.S. claims that the judge denied him the right to
cross-examine witnesses at the January 2022 hearing. We reject
this claim. A.S. alluded to cross-examination only once, and he
never directly asked to cross-examine N.S.
Fourth, A.S. claims that the judge who entered the
permanent order failed to remain neutral and presumed A.S. to be
guilty of assault. To the extent that claim is properly before
10 us, we reject it based on our review of the transcript.14
Notably, A.S. never requested that the judge recuse himself, let
alone made such a request in a timely fashion. See Demoulas v.
Demoulas Super Mkts., Inc., 428 Mass. 543, 547-549 (1998), S.C.,
432 Mass. 43 (2000); Adoption of Norbert, 83 Mass. App. Ct. 542,
545 (2013). Cf. Matter of Moore, 449 Mass. 1009, 1010 n.1
(2007) (summarily rejecting recusal claim raised for first time
on appeal); Commonwealth v. Armand, 411 Mass. 167, 175–176
(1991) (same).
Fifth and finally, although A.S. does not clearly frame the
argument in due process terms, he suggests without citation to
supporting authority that no c. 209A order should have entered
so long as the conditions of his pretrial release in the
criminal case required him to have no contact with N.S. or the
child. The court has held, however, that "conditions of
pretrial release, even if they encompass the same conditions as
an abuse prevention order, are no substitute for an abuse
prevention order." Vera V. v. Seymour S., 98 Mass. App. Ct.
315, 319 (2020).
14For example, A.S. claims that the judge showed he had prejudged the matter when he told A.S. that, the issue of custody by that time having been resolved in the divorce case, the subject of the extension hearing was "abuse prevention . . . whether or not in fact your former wife is in danger or is in fear of imminent serious physical harm from you." This statement was clearly intended simply to refocus A.S. onto the subject of the hearing.
11 3. Basis for permanent order. A.S. asserts that the
evidence failed to support the issuance of the permanent order.
We disagree. To begin with, the evidence included N.S.'s
original affidavit and testimony from July 2020, recounted
above, in which she stated that A.S. had physically assaulted
her in front of the child and that she was concerned about harm
and trauma to the child.
It also included N.S.'s subsequent affidavit in support of
the January 2021 extension, in which N.S. stated that A.S.
"continue[d] to be very afraid that [A.S.] could cause [her]
physical harm." She described his controlling and harassing
behavior, which included attempts to have a criminal complaint
issued against her and to have her and the child evicted from
their home. She stated that A.S. "seeme[ed] to be growing more
aggressive" and that she was "extremely fearful that if the
[o]rder is not extended, he may immediately come to [her] home,
frighten [her] and [her] child, and cause harm to [her]." She
therefore asked that the order be extended for two years.
A.S.'s counsel did not oppose extending the order as it
pertained to N.S. The judge who presided over that hearing
extended it for one year.15
15In light of N.S.'s affidavit, and of A.S.'s counsel's decision not to cross-examine N.S., we reject A.S.'s attack on the January 2021 extension order as having been issued based not on
12 The evidence also included N.S.'s testimony from the
January 2022 hearing at which the order was made permanent. In
response to questions from the judge,16 N.S. stated that, based
on A.S.'s past conduct, she remained afraid that he would cause
her "imminent serious physical harm," and that she was the
complaining witness in an ongoing criminal case against A.S.17
Through counsel she asked that the order be made permanent.
The judge not only expressly credited N.S.'s testimony
about her fear, but also stated, "I believe that she is in fact
in danger of imminent serious physical harm." Further, the
judge was entitled to find that N.S.'s fear was reasonable,
based on A.S.'s erratic and disrespectful demeanor at the
hearing. "[T]he parties' demeanor in court" has repeatedly been
evidence but merely on a presumption that it was still needed. We also reject A.S.'s argument that the order insofar as it pertained to the child lacked the requisite "independent support." Smith, 421 Mass. at 523. N.S.'s testimony regarding her fear of trauma to the child provided such support. The order to stay away from the child was not, as A.S. claims, issued "simply because it seem[ed] to be a good idea." Id. at 523 n.1. 16 Particularly in the charged atmosphere of the hearing, and
contrary to A.S.'s suggestion, the judge did not abuse his discretion in asking N.S. this series of short, focused questions to obtain critical information from her. 17 In light of this testimony, we reject A.S.'s claim that the
only judge to have heard testimony from N.S. was the judge who presided at the July 7, 2020 hearing. To the extent that A.S. complains that that same judge did not preside over subsequent hearings, which instead were conducted by different judges of the District Court, A.S. cites no authority suggesting that the common practice of judicial rotation violated any provision of law.
13 held to be a relevant factor that a judge should consider in
deciding whether to extend a c. 209A order. Iamele v. Asselin,
444 Mass. 734, 740 (2005). See S.V. v. R.V., 94 Mass. App. Ct.
811, 813 (2019); Vittone v. Clairmont, 64 Mass. App. Ct. 479,
487 (2005); Pike v. Maguire, 47 Mass. App. Ct. 929, 929 (1999).
In Pike, supra at 930, in affirming a permanent extension of a
c. 209A order, the court stated that "[c]onfirmation of the
reasonableness of the plaintiff's apprehension of the defendant
could be drawn from . . . the defendant's emotionally charged
statements at the [extension] hearing, . . . statements which
could well have indicated to the judge a basis for concluding
that the defendant's anger against the plaintiff might reignite"
(quotation and citations omitted). The same is true here; the
judge repeatedly commented that A.S.'s unstable and erratic
behavior over the course of the case and at the hearing caused
the judge to find that N.S. was both reasonably in fear and in
actual danger. The judge stated, "I am very concerned for your
former wife and for her safety, I truly am."
We reject A.S.'s claim that the judge shifted the burden to
him to prove that a permanent order was not necessary. The
judge's statement to A.S. that he wanted "to discuss why [the
c. 209A order] should not be extended either for a year or . . .
forever" was plainly intended merely to direct A.S.'s attention
14 away from the irrelevant matters A.S. was addressing and back
onto the subject of the hearing.
We acknowledge that A.S. vigorously contested N.S.'s
version of events, challenged the existence and reasonableness
of her fear, and offered his own evidence in support of his
position. But the judge was free to disbelieve A.S. "We accord
the credibility determinations of the judge who 'heard the
testimony of the parties . . . [and] observed their demeanor'
. . . the utmost deference." Ginsberg v. Blacker, 67 Mass. App.
Ct. 139, 140 n.3 (2006), quoting Pike, 47 Mass. App. Ct. at 929.
See Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 496 (2012),
quoting Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995)
("In a bench trial credibility is 'quintessentially the domain
of the trial judge [so that his] assessment is close to immune
from reversal on appeal except on the most compelling of
showings'").
15 Conclusion. The permanent c. 209A order entered on January
18, 2022, is affirmed.
So ordered.
By the Court (Meade, Massing & Sacks, JJ.18),
Assistant Clerk
Entered: February 22, 2024.
18 The panelists are listed in order of seniority.