S.L. v. G.L. ( 2023 )

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-343
S.L.1
vs.
G.L.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On September 20, 2021, a District Court judge issued an
abuse prevention order pursuant to G. L. c. 209A after a hearing
with both parties present. The defendant subsequently moved to
vacate that order, stating that he had been unprepared for the
September hearing. On November 4, 2021, by agreement of the
parties, the judge held a de novo extension hearing. After
hearing evidence from both parties, the judge extended the order
for one year. The defendant now appeals from that November
extension order. Concluding that the plaintiff presented
sufficient evidence of abuse at the November extension hearing
and that, in light of the parties' agreement to a de novo
1 After inquiry by the court, the plaintiff chose not to file a
brief in this appeal, as is her right.
hearing, the judge was entitled under the statute to extend the
order for up to one year, we affirm.
1. Standard of review. We review the extension of an
abuse prevention order "for an abuse of discretion or other
error of law." Constance C. v. Raymond R., 101 Mass. App. Ct.
390, 394 (2022), quoting E.C.O. v. Compton, 464 Mass. 558, 562
(2013). "A plaintiff seeking the extension of an abuse
prevention order must prove 'by a preponderance of the evidence
. . . that the defendant has caused or attempted to cause
physical harm, committed a sexual assault, or placed the
plaintiff in reasonable fear of imminent serious physical
harm.'" G.B. v. C.A., 94 Mass. App. Ct. 389, 393 (2018),
quoting MacDonald v. Caruso, 467 Mass. 382, 386 (2014). "We
accord the credibility determinations of the judge who 'heard
the testimony of the parties . . . [and] observed their
demeanor' . . . the utmost deference." Yahna Y. v.
Sylvester S., 97 Mass. App. Ct. 184, 185 (2020), quoting
Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006).
2. November hearing. a. Sufficiency of the evidence of
abuse. At the November hearing, the plaintiff testified that
the defendant, her husband, raped her and that he continued to
do so even after she said, "You're hurting me." She testified
that on another occasion the defendant "grabbed [her] arms," and
then "stood over [her] screaming and yelling . . . , calling
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[her] a piece of shit." She further testified that "[the
defendant] took [her] computer, [her] passport, the titles to
[her] car, . . . all of [her] jewelry and [that] he hid [her]
medications." See Vanna V. v. Tanner T., 102 Mass. App. Ct.
549, 554 (2023) (sufficient evidence to extend abuse prevention
order "[g]iven the long history of violence and the detailed
testimony of the plaintiff as credited by the judge"); M.B. v.
J.B., 86 Mass. App. Ct. 108, 117 (2014) ("the evidence was
plainly sufficient to support the issuance of the abuse
prevention order" where there was "a past history of anger and
violence, coupled with the conduct that followed the filing of
the divorce petition, and the ongoing escalation of contact in
violation of the no contact orders").
In addition, the plaintiff described several violations of
the September restraining order. The plaintiff testified that
she was contacted by someone after the defendant indicated that
he "wanted to set up a meeting with [her]" and that the
defendant approached her at work one day after she "found [a]
gun hidden under the bed." See Callahan v. Callahan, 85 Mass.
App. Ct. 369, 370 (2014) (judge extended abuse prevention order
after "[the defendant] violated the order and was arrested for
crimes of violence against [the plaintiff]"). The plaintiff's
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testimony provided adequate support for the judge's finding that
the plaintiff was suffering from abuse.2
b. Extension of the order. At the initial hearing after
notice, a judge may extend an abuse prevention order "for a
fixed period of time not to exceed one year." G. L. c. 209A,
§ 3. See G.B., 94 Mass. App. Ct. at 389 (judge extended abuse
prevention order "for a period of one year"). Only after the
next extension hearing may a judge issue a permanent order.
G. L. c. 209A, § 3. See L.L. v. M.M., 95 Mass. App. Ct. 18, 20
(2019).
While considering the motion to vacate, the judge offered
the defendant a new extension hearing. Both parties agreed to
the judge's holding a new extension hearing, even though the
September order did not expire for over ten months. After the
hearing, the judge "extended the abuse prevention order for one
year." Vanna V., 102 Mass. App. Ct. at 549. Given that the
parties had agreed to a de novo hearing, the judge acted within
2 In his brief, the defendant also claims that there was
insufficient evidence at the September hearing that the
plaintiff was suffering from abuse. The defendant, however, did
not file a notice of appeal from that order. Cf. V.M. v. R.B.,
94 Mass. App. Ct. 522, 524 (2018) ("The defendant d[id] not
challenge the sufficiency of the evidence underlying the
extension of the c. 209A order at the hearing after notice").
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his discretion to extend the order for a year from the date of
the November hearing.
Order dated November 5, 2021,
affirmed.
By the Court (Ditkoff, Hand &
D'Angelo, JJ.3),
Clerk
Entered: June 27, 2023.
3 The panelists are listed in order of seniority.
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