H.Q. v. K.Q. ( 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-1218
H.Q.
vs.
K.Q.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a District Court judge's order
extending an abuse prevention order issued under G. L. c. 209A.
He argues that the judge erred by employing an incorrect legal
standard and that the plaintiff failed to meet her burden of
demonstrating a continued need for the c. 209A order. We
affirm.
The parties are married but in the midst of divorce
proceedings. On September 4, 2020, the plaintiff filed a
complaint for a c. 209A order, alleging that the defendant
became violent with their daughter and gave her a concussion. A
temporary c. 209A order issued ex parte, and after a two-party
hearing on September 16, 2020, a judge extended the temporary
order for one year. 1 The judge made the following written
findings: "[Plaintiff] says [defendant] was physically violent
[with plaintiff] in the past, she never called the police.
[Defendant] told [plaintiff] what goes on in the house, stays in
the house." On September 10, 2021, after a two-party hearing,
the same judge extended the c. 209A order for an additional
year. The defendant did not appeal from either the first or
second extension order.
On September 9, 2022, a different judge (second judge) held
a third extension hearing. Both parties testified. At the
conclusion of the hearing, the second judge ruled, "Considering
only the . . . credible testimony before me, I will extend this
order for one year." It is from this order that the defendant
appeals.
The defendant first argues that reversal is required
because the second judge did not make findings of fact or
explain what "credible testimony" she relied on in reaching her
decision. Because of this, the defendant urges us to presume
that the second judge "employ[ed] an incorrect legal standard."
His argument is unavailing. We presume that judges correctly
instruct themselves on the law. See Goddard v. Goucher, 89
1 The portions of the order that pertained to the parties'
children were later vacated or modified and are not at issue in
this appeal.
2
Mass. App. Ct. 41, 49 (2016). Moreover, specific findings are
not required in c. 209A cases so long as "we are able to discern
a reasonable basis for the order in the judge's rulings and
order." G.B. v. C.A., 94 Mass. App. Ct. 389, 396 (2018).
We thus turn to the defendant's second argument that there
was no basis for the second judge's decision to extend the
c. 209A order. Where, as here, the original order was
predicated on actual physical harm, the question for a judge
faced with an extension request is whether there is a "continued
need for an abuse prevention order to protect the plaintiff from
the impact of the violence already inflicted." Callahan v.
Callahan, 85 Mass. App. Ct. 369, 374 (2014). "Among the
nonexclusive factors the judge should consider are 'the
defendant's violations of protective orders, ongoing child
custody or other litigation that engenders or is likely to
engender hostility, [and] the parties' demeanor in court.'"
Id., quoting Iamele v. Asselin, 444 Mass. 734, 740 (2005). We
review a judge's decision to extend a c. 209A order only for an
abuse of discretion or other error of law, according the judge's
credibility determinations "the utmost deference" (citations
omitted). Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 664
(2020).
Based on the evidence presented at the hearing, the second
judge properly found that the plaintiff established a continued
3
need for the c. 209A order. The plaintiff testified to the
defendant's history of violent behavior against both her and the
children. According to the plaintiff, the defendant physically
and verbally assaulted her "many times," and she described a
particular incident where the defendant threw a remote control
at her and then "started to choke" her. The plaintiff stated
that she remained in fear of the defendant. She also described
the contentious nature of the ongoing divorce proceedings and
testified that the defendant had violated a prior c. 209A order
by contacting the parties' son to obtain information related to
those proceedings. The totality of these circumstances
supported the second judge's decision to extend the c. 209A
order for one year. See Callahan, 85 Mass. App. Ct. at 375.
To the extent the defendant argues that the plaintiff's
allegations of abuse were not credible, that argument fails
because an extension hearing is not an opportunity for a
defendant to "challenge the evidence underlying the initial
order." Iamele, 444 Mass. at 740. Furthermore, questions of
credibility are the province of the judge, who has the
opportunity to observe the witnesses. See G.B., 94 Mass. App.
4
Ct. at 395. Here, the second judge implicitly credited the
plaintiff's testimony, and we defer to her determination. 2
Order dated September 9,
2022, extending G. L.
c. 209A order affirmed.
By the Court (Wolohojian,
Shin & Ditkoff, JJ. 3),
Clerk
Entered: October 4, 2023.
2 In the exercise of our discretion, we deny the plaintiff's
request for appellate attorney's fees.
3 The panelists are listed in order of seniority.
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