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-244
C.T.
vs.
R.C.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the extension of an abuse
prevention order entered on November 9, 2021, in the District
Court. He contends that the District Court judge erred in
granting the extension because there was insufficient evidence
justifying the extension and he was not allowed to present
evidence or cross-examine witnesses. 1 We affirm.
Background. The parties were in a dating relationship for
approximately six months. On November 4, 2019, after an
incident involving the plaintiff resulted in criminal charges
against the defendant, the plaintiff obtained the original
order, which was subsequently extended, after a hearing on
November 7, 2019, for one year. At the November 7, 2019,
1 The plaintiff has not participated in the appeal.
hearing, the judge stated that the affidavit had not been
signed, but that he would have the plaintiff sign it. The
defendant has not put the affidavit, signed or unsigned, in the
record appendix. In 2020, the order was extended for another
year after a hearing which the defendant -- who was incarcerated
-- did not attend.
On November 9, 2021, after another hearing, the order was
extended until November 2022. At that hearing, the defendant,
who was incarcerated at the Hampden County house of correction,
appeared by video call over "Zoom," an online video conferencing
platform provided by Zoom Video Communications, Inc. The
plaintiff appeared in person.
The defendant, when asked by the judge whether he opposed
an extension, responded that it was "not [his] burden" but that
he "did want to be physically habed in" that day –- that is,
brought into court through issuance of a writ of habeas corpus -
- and that he had "some documents [he] want[ed] to submit to the
Court." Those documents included "digital documentation,
digital evidence, screenshots and photographs and text
conversations." He asked that the judge "put [the extension
hearing] off until [he could] get a physical habe, perhaps this
week." The judge then reviewed an affidavit from the plaintiff.
Recognizing that the defendant was entitled to present his
evidence, the judge said "Well, what I'm going to do is I'm
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going to extend the order for a year, but I am going to
authorize without prejudice to [R.C.]. We'll habe you in and
you can present to me whatever documentation you want to show
me." The judge wrote on the abuse prevention order "Extended
w/out prejudice[.] [R.C.] should be habed in to appear on
12/7/21." According to the docket, on the date this order
issued, the judge issued a writ of habeas corpus to have the
defendant brought to court on December 7, 2021. Three days
after the hearing, the defendant filed a notice of appeal.
The docket states that a hearing was held on December 7,
2021, before a second judge. We have no transcript of that
proceeding, nor does the defendant even mention it in his
filings. The docket indicates an abuse prevention order was
issued after that hearing and the defendant was served with it
in hand. The record appendix contains no such order. We infer
that it left the November 9, 2021, extension order before us
undisturbed, though the defendant has provided nothing
indicating whether it reaffirmed that order, superseded it, or
took some other action. The defendant did not notice an appeal
from the December 7, 2021 order.
Discussion. The defendant argues that the initial order
should not have issued and that his due process rights were
violated at the November 9, 2021, extension hearing. He is not
free to now challenge the evidence supporting the initial order
3
in an extension proceeding such as this. See Iamele v. Asselin,
444 Mass. 734, 740 (2005) ("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"). Nor is this an appeal of the November 2019
extension order, so no question with respect to that order is
properly before us. See C.R.S. v. J.M.S., 92 Mass. App. Ct.
561, 564 (2017) ("[A] defendant is not entitled to relitigate
each stage of the proceedings").
With respect to the November 9, 2021, extension order,
which is properly before us, the defendant argues only that "the
court denied the appellant the right to present evidence and []
an opportunity to be heard on the question of continuing the
order and of granting other relief." He states that "the record
reveals the defendant was not given an opportunity to present
evidence or to call and cross-examination witnesses. The
defendant specifically argued to be present in court. The
defendant explicitly argued for his right to present evidence.
The defendant was not permitted to present evidence.
Incomprehensibly, the court, extended the order without giving
the defendant the opportunity to challenge the extension of the
order with cross-examination of the witness and the presentation
of favorable evidence."
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The record indicates that, to the contrary, the judge
specifically issued the extension order without prejudice to
allow the defendant the opportunity to appear in person and to
present the evidence he sought to present, which could not be
accommodated on the date of the hearing. The defendant has
provided nothing, not even an assertion in his brief, that the
second hearing did not occur, or that he did not at that hearing
have the opportunity to be present, to present evidence, or to
cross-examine any witnesses. "[I]t is the appellant's
responsibility to ensure that the record is adequate for
appellate review." Roby v. Superintendent, Mass. Correctional
Inst., Concord, 94 Mass. App. Ct. 410, 412 (2018), quoting
Commonwealth v. Woody, 429 Mass. 95, 97 (1999). In the absence
of any evidence of shortcomings in the hearing the judge
scheduled precisely in order to protect the defendant's rights,
and assuming the order before us continued in effect after that
hearing, the defendant has not met his burden to show that the
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extension order remains in place as a result of any procedural
deficiency.
Order entered November 9,
2021, affirmed.
By the Court (Rubin,
Englander & Brennan, JJ. 2),
Clerk
Entered: August 9, 2023.
2 The panelists are listed in order of seniority.
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