A.L. v. C.D. ( 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
20-P-231
A.L.
vs.
C.D.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, C.D., appeals from the order denying his
motion to modify a G. L. c. 209A abuse prevention order entered
against him and from the order denying his motion for
reconsideration. 1 We affirm.
Background. On January 21, 2009, the plaintiff filed an
application for an abuse protection order under c. 209A. A one-
day temporary order was entered, and after a series of
extensions, on January 29, 2010, the order was made permanent.
The order required the defendant to stay away from, and not to
contact, the plaintiff and the parties' minor child. In 2013,
the defendant successfully moved to modify the order to
terminate the provisions requiring him to stay away from the
1 The plaintiff did not file a brief.
child. In 2017, the defendant's motion to vacate the remaining
portion of the order was denied. The defendant appealed, and a
panel of this court affirmed the order. See A.L. v. C.D., 94
Mass. App. Ct. 1103 (2018).
On August 26, 2019, the defendant moved to modify the abuse
prevention order to make it "mutual." On August 28, 2019, a
judge denied the motion on the ground that the defendant had
failed to show by clear and convincing evidence that the order
was no longer necessary to protect the plaintiff from abuse.
The defendant filed a motion for reconsideration on September
20, 2019, emphasizing that the application of c. 209A in this
case violated his equal protection rights, and that a mutual
order was necessary to protect him from harm. The judge denied
the motion in an order entered on September 24, 2019, stating,
"There is no basis for a mutual order." The defendant appeals.
Discussion. The defendant claims that the judge abused her
discretion and violated his right to equal protection of the
laws when she denied his motion to make the existing order
mutual. We review a judge's decision denying a c. 209A order or
denying a motion to vacate c. 209A order for abuse of
discretion. See MacDonald v. Caruso, 467 Mass. 382, 391 (2014);
S.V. v. R.V., 94 Mass. App. Ct. 811, 813 (2019).
To be entitled to a mutual order, the defendant was
required to establish his own entitlement to relief under
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c. 209A. "[A]pplications for retaliatory abuse prevention
orders should only be allowed if the predicate conditions are
shown and not as a prophylactic agent to prevent putative
violations." Uttaro v. Uttaro, 54 Mass. App. Ct. 871, 875
(2002). Therefore, the defendant was required to establish that
he was "suffering from abuse." Iamele v. Asselin, 444 Mass.
734, 736 (2005), quoting G. L. c. 209A, § 3. In support of his
motion, the defendant stated that he was "harmed" because the
existing order prevented him from obtaining parole. This is not
the type of harm contemplated by c. 209A. See Iamele, supra at
736-737 ("abuse" under c. 209A involves physical harm,
involuntary sexual relations, or placing another in fear of
imminent serious physical harm); Uttaro, supra at 873 (obtaining
abuse prevention order "requires proof of some act that places
the complainant in reasonable apprehension that force may be
used"; fear of arrest due to plaintiff's selective enforcement
of abuse prevention order insufficient). As the defendant made
no showing of abuse, the judge did not abuse her discretion by
declining to make the order mutual.
As to the defendant's equal protection claim, we discern no
error. His motion for a mutual order was evaluated under the
same definition of "abuse" that was applied to the plaintiff's
application. To the extent the defendant argues that the judges
issuing or extending the original c. 209A order did not properly
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apply the standard, or erroneously issued the order "simply
because it seem[ed] to be a good idea," Smith v. Joyce, 421
Mass. 520, 523 n.1 (1995), his time to challenge the original
order has long passed. See MacDonald, 467 Mass. at 387-388;
Iamele, 444 Mass. at 742. To modify or terminate the order, the
defendant was required to "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" (emphasis added). Cordelia C. v. Steven
S., 95 Mass. App. Ct. 635, 639 (2019), quoting MacDonald, supra
at 382-383. The defendant made no such showing. See MacDonald,
supra at 393 (defendant's affidavit stating he had "moved on
with his life" insufficient to demonstrate he had "'moved on'
from his history of domestic abuse and retaliation"). The
possibility that the existing order hurt his chances of
obtaining parole was not a relevant consideration.
Conclusion. The order docketed August 28, 2019, denying
the motion to modify, is affirmed. The order docketed September
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24, 2019, denying the motion for reconsideration, is affirmed.
So ordered.
By the Court (Massing,
Ditkoff & Singh, JJ. 2),
Clerk
Entered: August 3, 2023.
2 The panelists are listed in order of seniority.
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