Opinion
21-P-905
05-03-2022
S.M. v. C.F.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, C.F., appeals from the extension of an abuse prevention order issued pursuant to G. L. c. 209A, § 3 (209A order). He contends that a judge of the Probate and Family Court (the judge) abused her discretion in granting the extension because the plaintiff, S.M., did not prove a substantial likelihood of immediate danger of abuse. He further argues that the Probate and Family Court "retaliated" against him by delaying the transmission to this court of the record on appeal. We affirm.
Background.
The 209A order was initially issued by a District Court judge and extended in that court, and then transferred to the Probate and Family Court, where it was again extended and amended to comport with that court's orders as to the parties' custody of and visitation with their children.
On July 8, 2019, the plaintiff moved to extend the 209A order permanently. The defendant opposed the extension and moved to terminate the 209A order. At a hearing on July 19, 2019, this exchange occurred:
THE JUDGE: "[Plaintiff's counsel], I was going to hear from you on the 209A, you've requested a permanent order."
PLAINTIFF'S COUNSEL: "I have, Your Honor. And to that end, there are several reasons for that and within the past year, Your Honor, since -- "
(Break in audio 10:00:33 A.M.)
(Audio begins 10:06 A.M)
After that gap, the transcript resumed with the defendant's argument opposing the extension of the 209A order. Over the course of about six transcript pages, he maintained that he interpreted the 209A order as "black and white"; said that in his view it prevented him from appearing at court-ordered supervised visitation with his children because the plaintiff might be nearby; and argued that the plaintiff "coaxe[d]" and "bait[ed]" him into violating it.
The judge extended the 209A order for four years, explaining her reasoning in a five-page memorandum. The defendant filed timely notice of appeal.
Discussion.
1. Sufficiency of evidence.
The defendant contends that the judge abused her discretion in extending the 209A order. We disagree.
"The standard for obtaining an extension of an abuse prevention order is the same as for an initial order -- 'most commonly, the plaintiff will need to show a reasonable fear of imminent serious physical harm at the time that relief ... is sought.'" S.V. v. R.V., 94 Mass.App.Ct. 811, 813 (2019), quoting McDonald v. Caruso, 467 Mass. 382, 386 (2014) . However, where the initial 209A order issued based on evidence that the defendant caused physical harm to the plaintiff, G. L. c. 209A, § 1 (a.), to obtain an extension of the order the plaintiff need not prove a reasonable fear of imminent future physical abuse. See Yahna Y. v. Sylvester S., 97 Mass.App.Ct. 184, 186-187 (2020), citing McIsaac v. Porter, 90 Mass.App.Ct. 730, 733-734 (2016). "Rather, when a plaintiff has suffered physical abuse, a judge may reasonably conclude that a c. 209A order is necessary 'because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent.'" Yahna Y., supra at 187, quoting Callahan v. Callahan, 85 Mass.App.Ct. 369, 374 (2014) .
To obtain an extension of a 209A order, a plaintiff is not required to demonstrate that additional abuse occurred during the pendency of the order. G. L. c. 209A, § 3. See Rauseo v. Rauseo, 50 Mass.App.Ct. 911, 913 (2001). "It is the totality of the conditions that exist at the time that the plaintiff seeks the extension, viewed in the light of the initial abuse prevention order, that govern." S.V., 94 Mass.App.Ct. at 813, quoting Iamele v. Asselin, 444 Mass. 734, 741 (2005). We review the issuance of an extension order "for an abuse of discretion or other error of law." G.B. v. C.A., 94 Mass.App.Ct. 389, 393 (2018), quoting E.C.O. v. Compton, 464 Mass. 558, 562 (2013). We accord the "utmost deference" to the credibility determinations made by the judge who "heard the testimony of the parties . . . [and] observed their demeanor" (citation omitted). Noelle N. v. Frasier F., 97 Mass.App.Ct. 660, 664 (2020).
In her memorandum explaining her reasons for extending the 209A order, the judge noted that the District Court judge had issued the 209A order based on events in which the defendant had "physically assaulted [p]laintiff to take her phone from her and then broke [p]laintiff's phone." The judge noted that the defendant was arrested for assault and battery, and that charge was later continued without a finding.
In fact, the police report in the record shows that the defendant was arrested for assault and battery on a family or household member, G. L. c. 265, § 13M, and defacement of real or personal property, G. L. c. 266, § 126A.
The defendant maintains that the plaintiff "lied about the whole assault and battery charge." But although the basis for the initial order is relevant to whether a restraining order should be extended, the defendant is not free to challenge the evidence supporting the initial order in an extension proceeding such as this. As the Supreme Judicial Court said in Iamele v. Asselin, 444 Mass. at 734: "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." In any event, the defendant did not provide us with the plaintiff's affidavit in support of the initial 209A order. As the appellant, it was his obligation to provide the court with "any document . . . filed in the case relating to an issue which is to be argued on appeal." Mass. R. A. P. 18 (a) (1) (A) (v) (b), as appearing in 481 Mass. 1637 (2019). Without the plaintiff's affidavit, we are unable to evaluate the defendant's argument as it pertains to the basis for the initial order. See Cordelia C. v. Steven S., 95 Mass.App.Ct. 635, 637 n.5 (2019). The defendant further maintains that the extension of the 209A order was "based on fabrications of [his] unrelated innocuous actions." However, as set forth above, he has not provided us with a transcript of the extension hearing that includes the representations made by plaintiff's counsel. As the appellant, it was the defendant's burden to do so, including by moving in the trial court to reconstruct the missing portion of the transcript. See Mass. R. A. P. 8 (e) (1), as appearing in 481 Mass. 1611 (2019), and Reporter's Notes to Rule 8 (1973) ("The appellant is responsible for attending to the preparation of a transcript; this transcript must be sufficiently extensive to cover all points raised by the appeal"). See also Commonwealth v. Woody, 429 Mass. 95, 97-98 (1999). In her memorandum, the judge noted that she relied on those representations of the plaintiff's counsel. The judge also found that the defendant's demeanor at the hearing was "defiant": he refused to admit that he had done anything wrong, and insisted that the plaintiff had violated the 209A order even though it did not restrict her conduct.
The defendant has included in the record appendix a four-page document that seems to be a description of events leading to the irretrievable breakdown of the parties' marriage, but it is unsigned, unsworn, and does not even contain the plaintiff's name.
The defendant argues that we should "deduce[]" the plaintiff's counsel's arguments in support of extending the order from his own arguments opposing it. We decline to do so.
The judge also noted that both parties had testified at an extension hearing a year before; those transcripts are before us. The judge found that at the prior hearing the plaintiff had been "trembling and crying" during her testimony, which was "credible."
Based on the evidence before her, the judge found that the plaintiff had met her burden to show by a preponderance of the evidence that an extension of the 209A order was necessary to protect her from the likelihood of abuse, and extended the order. Based on the incomplete record that the defendant has presented us, he has failed to show that the judge abused her discretion in doing so. Cf. G.B., 94 Mass.App.Ct. at 392-395.
2. Delay in transmitting record.
The defendant argues that he was prejudiced because, although the transcript of the July 19, 2019 hearing extending the 209A order was received by the trial court in March 2020, the record in the case was not transmitted to this court until September 27, 2021. Because, as discussed above, the judge properly extended the 209A order until July 26, 2023, the defendant has not shown prejudice from any delay in the assembly and transmission of the record on appeal. See Commonwealth v. Duhamel, 391 Mass. 841, 847 (1984).
From this record, we cannot determine whether the delay was caused in whole or in part by the Covid pandemic.
Order entered July 19, 2019, extending G. L. c. 209A order affirmed.
By the Court
The panelists are listed in order of seniority.