L.L. v. M.M.

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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.