A.Z. v. H.G. ( 2024 )

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
23-P-900
A.Z.
vs.
H.G.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, H.G., appeals from the decision of a
District Court judge to extend an abuse prevention order
obtained by the plaintiff, A.Z., pursuant to G. L. c. 209A. He
raises several arguments in support of his contention that the
judge's order should be vacated. We affirm.
Background. On January 30, 2020, the plaintiff sought a
209A order and submitted an affidavit in the District Court. In
the affidavit, she described a violent relationship with the
defendant. A week earlier the defendant threw a heavy slow
cooker at her, striking her leg. He previously slapped her,
threw her belongings in a Dumpster, and poured cold water over
her bed, among many other abuses over two to three years. At
the conclusion of the hearing, the judge issued the order
requiring the defendant to refrain from abuse, have no contact
with the plaintiff, stay away from the plaintiff's residence,
and surrender his firearms.
By agreement of the parties (as well as scheduling issues
caused by the pandemic), a two-party hearing was delayed until
June 30, 2022. Both parties appeared with counsel, and a second
judge extended the order for one year. Following a hearing on
June 29, 2023, with both parties present with counsel, a third
judge extended the order for five years. The defendant filed a
notice of appeal.
Discussion. "The inquiry at an extension hearing is
whether the plaintiff has shown by a preponderance of the
evidence that an extension of the order is necessary to protect
her from the likelihood of 'abuse' as defined in G. L. c. 209A,
§ 1." Iamele v. Asselin, 444 Mass. 734, 739 (2005). The
ultimate "criterion for extending the original order is a
showing of continued need for the order." Pike v. Maguire, 47
Mass. App. Ct. 929, 929 (1999). A judge is to examine the
totality of the circumstances of the parties' relationship,
including the basis for the initial order as well as any changes
in the relationship since the initial order. Iamele, 444 Mass.
at 740-741.
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"We review the extension of a c. 209A order for an abuse of
discretion or other error of law" (quotation and citation
omitted). Latoya L. v. Kai K., 104 Mass. App. Ct. 173, 177
(2024). "[A] judge's discretionary decision constitutes an
abuse of discretion where [the reviewing court] conclude[s] 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." Constance C. v.
Raymond R., 101 Mass. App. Ct. 390, 394 (2022), quoting L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Based on the totality of the circumstances of the parties'
relationship, viewed in light of the initial abuse prevention
order, the judge properly exercised her discretion to extend the
order for a five-year period. At the hearing on June 29, 2023,
the judge reviewed the plaintiff's affidavit and heard testimony
from the defendant as well as arguments of counsel. The
defendant acknowledged having loud arguments with the plaintiff,
but he denied inflicting physical abuse, denied throwing any
objects, and denied using a firearm. He also claimed that the
plaintiff and her daughter prevented him from seeing his
children and delayed his chance to see his children as part of a
scheme to obtain a permanent restraining order. The judge was
not required to credit the defendant's testimony or agree with
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his contention that the extension was not needed. See Ginsberg
v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006) (even implicit
credibility determination of judge is entitled to utmost
deference). Based on the plaintiff's affidavit, the judge could
"reasonably conclude that there is a continued need for the
order because the damage resulting from that physical harm
affects the victim even when further physical attack is not
reasonably imminent." Callahan v. Callahan, 85 Mass. App. Ct.
369, 374 (2014). To the extent the defendant contested the
facts underlying the initial order, those facts were not open to
dispute at the extension hearing and are not subject to review
in this appeal. Iamele, 444 Mass. at 740. Arguments directed
at the propriety of the issuance of criminal complaints, arrest
by the Brookline Police Department, service of the 209A orders,
proceedings in the Probate and Family Court, and actions taken
by the Department of Children and Families are likewise not
properly presented by this appeal.
The defendant's brief and reply brief also contain numerous
and wide-ranging factual allegations that are not found in the
record of the extension hearing of June 29, 2023. Because they
are not part of the record of the hearing that is the subject of
this appeal, the allegations are "not properly before us," and
we do not consider them. Stratos v. Department of Pub. Welfare,
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387 Mass. 312, 324 n.12 (1982). Also, claims raised for the
first time in the defendant's reply brief are waived. See
Travenol Labs., Inc. v. Zotal, Ltd., 394 Mass. 95, 97 (1985).
Finally, to the extent the defendant claims a lack of
jurisdiction due to his alleged Rhode Island residency, the
Supreme Judicial Court rejected a similar claim in Caplan v.
Donovan, 450 Mass. 463, 468-472 (2008).
The parties' requests for attorney's fees and costs are
denied.
Order dated June 29, 2023,
affirmed.
By the Court (Neyman,
Hershfang & Hodgens, JJ.1),
Clerk
Entered: August 27, 2024.
1 The panelists are listed in order of seniority.
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