A.S. v. B.S. ( 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
23-P-179
A.S.
vs.
B.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a hearing, a judge of the District Court extended
an abuse prevention order issued pursuant to G. L. c. 209A (209A
order) against the defendant, B.S. The defendant appeals,
contending that the judge erred because (1) the plaintiff, A.S.,
did not prove by a preponderance of the evidence that she was
reasonably in fear of an imminent threat of physical harm, and
(2) the District Court lacked jurisdiction to issue a custody
order due to a pending divorce proceeding in the Probate and
Family Court. We affirm.
1. Background. The parties were married on April 28,
2018, and share one child. On November 13, 2021, the plaintiff
applied for and received an emergency 209A order from the on-
call judge. Among other things, the 209A order awarded custody
of the parties' child to the plaintiff. The plaintiff then
appeared in the District Court on November 15, 2021, seeking an
extension of the 209A order. The defendant appeared with
counsel. After an evidentiary hearing at which both parties
testified, a judge extended the 209A order for one year, until
November 15, 2022. The defendant did not appeal from that
order.
During the evidentiary hearing, the plaintiff testified
that she "felt threatened" by the defendant "every time [she]
tried to contest his opinion on something" and that during their
initial separation, the defendant threatened that the plaintiff
"better get the cops involved" if she did not allow him to take
their child, which the plaintiff understood to mean "he was
going to physically harm [the plaintiff]." She also expressed
her belief that the defendant was inappropriate with their
child, and that there was an ongoing child sexual abuse
investigation related thereto.
On November 19, 2021, the defendant filed a complaint for
divorce in the Probate and Family Court. On May 18, 2022, the
defendant was arraigned in the District Court on charges of
violating the 209A order and failing to surrender a firearm
pursuant to the 209A order.
On November 15, 2022, before a different judge, both
parties appeared with counsel, and the plaintiff requested a
further extension of the 209A order. The hearing proceeded on
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representations of counsel, although the plaintiff answered
several questions asked of her by the judge. The plaintiff's
counsel represented that the plaintiff "still [had] a reasonable
fear of imminent physical harm" based on the allegations
presented in the initial affidavit, including allegations of
sexual abuse against the parties' daughter; allegations that the
defendant took and sent sexually explicit pictures and videos of
the plaintiff without her consent, for which criminal charges
were filed; and the criminal charges on which the defendant was
arraigned in May 2022. At the hearing, the defendant's counsel
represented that following a fair hearing, the Department of
Children and Families (DCF) had reversed "the supported
allegations of sexual abuse" because "they [were] not made with
a reasonable basis for support," and that the charges for
violation of a restraining order and failure to surrender a
firearm were to be dismissed.
The judge noted that "[t]he standard at this stage of the
proceeding is by a fair preponderance of the evidence, [fifty
percent] plus one" and extended the 209A order for one year
until November 15, 2023. The defendant timely appealed from
that order.
2. Extension of the 209A order. The defendant argues that
the plaintiff did not meet her burden to establish that she
reasonably feared imminent physical harm by the defendant at the
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time of the extension hearing. "We review the issuance of a
c. 209A order for an abuse of discretion or other error of law."
Idris I. v. Hazel H., 100 Mass. App. Ct. 784, 787 (2022).
"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). Under G. L. c. 209A, § 1, the
definition of abuse includes "placing another in fear of
imminent serious physical harm." The "same statutory
definition[s] [apply] in the context of . . . extended . . .
orders." Vittone v. Clairmont, 64 Mass. App. Ct. 479,
485 (2005).
As discussed supra, the November 15, 2021 order was based
on the plaintiff's affidavit and testimony that the defendant
was "verbally and emotionally abusive for most of [their]
relationship . . . [and that] [h]is behaviors and emotions can
be unpredictable if [she does not] submit to his requests or
disagree with him in general so [she] fear[ed] for [her]
safety." The plaintiff's counsel represented that "she ha[d]
the same fear of imminent physical harm that she had when she
moved for the order initially," and that the ongoing civil and
criminal litigation related to the parties' relationship
contributed to the plaintiff's fear of imminent physical harm.
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The defendant opposed extension of the 209A order, citing
the DCF fair hearing decision and the dismissal of some of the
criminal charges. However, that DCF reversed the finding of
sexual abuse is not outcome-determinative for purposes of a 209A
order. That is because "[i]n evaluating whether a plaintiff has
met her burden, a judge must consider the totality of the
circumstances of the parties' relationship. . . . The judge is
to consider the basis for the initial order . . . [and] [o]ther
factors . . . [including] ongoing child custody or other
litigation that engenders or is likely to engender hostility."
Iamele, 444 Mass. at 740.
Here, the judge properly considered "the totality of
conditions that exist[ed] at the time that the plaintiff
[sought] the extension," Iamele, 444 Mass. at 740, and,
therefore, did not commit an error of law or abuse his
discretion in finding that the plaintiff was "in fear of
imminent serious physical harm." G. L. c. 209A, § 1. These
conditions included the ongoing criminal and divorce cases that
could be a source of friction between the parties. See Iamele,
supra. Moreover, "[t]he fact that abuse has not occurred during
the pendency of an order shall not, in itself, constitute
sufficient ground for denying or failing to extend the order."
G. L. c. 209A, § 3. See Mitchell v. Mitchell, 62 Mass. App. Ct.
769, 773-774 (2005).
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3. Custody order. The defendant next contends that the
judge did not have jurisdiction to enter the custody order as
part of the extension of the 209A order because a custody order
had issued in the ongoing Probate and Family Court case. 1
General Laws c. 209A, § 3, permits "[a] person suffering from
abuse from an adult . . . [to] file a complaint in the court
requesting protection from such abuse, including, but not
limited to . . . awarding the plaintiff temporary custody of a
minor child." Where there is a pending action in the Probate
and Family Court, "an order issued in the . . . district . . .
court department[] of the trial court pursuant to this chapter
may include . . . orders for custody . . . ; provided . . . that
such order may be superseded by a subsequent custody . . . order
issued by the probate and family court department." G. L.
c. 209A, § 3 (d).
Here, the defendant contends that there is a Probate and
Family Court custody order. Although the Probate and Family
1 The defendant also argues that the extension of the abuse
prevention order as to the child was improper because "the
record is insufficient to demonstrate that the child was or
remained reasonably in fear of imminent serious physical harm."
However, the 209A order in this case was between the plaintiff
and the defendant; the complaint was not filed on behalf of the
minor child. Where the judge may "award[] the plaintiff
temporary custody" as a remedy under G. L. c. 209A, § 3 (d),
there is no requirement to show that the child is reasonably in
fear of imminent serious physical harm.
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Court docket reflects action on motions, 2 it does not reflect the
entry of custody orders, and neither party has included such an
order in the record appendix. We note that as the appellant, it
is the defendant's burden to provide us with a complete record
on appeal. See Mass. R. A. P. 18 (a) (1), as appearing in 491
Mass. 1603 (2023). See also Baker v. Gray, 57 Mass. App. Ct.
618, 626-627 & n.5 (2003).
Although G. L. c. 209A, § 3 (d), provides that the Probate
and Family Court has final jurisdiction over custody orders,
that does not mean "district . . . court judges are prohibited
or discouraged from ordering all other necessary relief or
issuing the custody . . . provisions of orders pursuant to this
chapter for the full duration permitted." Cf. Quilla Q. v. Matt
M., 102 Mass. App. Ct. 237, 241-242 (2023) (District Court order
for child support pursuant to G. L. c. 209A, § 3 [e], "does not
usurp the authority of the Probate and Family Court" and is a
"proper exercise of judicial discretion").
The defendant further argues that even if the District
Court had jurisdiction to extend the custody order, the judge
was required to make factual findings as to the best interests
of the child. This argument misses the mark as G. L. c. 209A,
2 At oral argument, the defendant claimed that the July 26, 2022
order on the defendant's amended motion for temporary orders and
for appointment of a guardian ad litem was an order regarding
custody of the minor child. The record does not reveal that.
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§ 3 (d), requires such findings in any case brought in the
Probate and Family Court, not where the order was issued by a
District Court judge. And whether a request for custody is made
in the District Court or the Probate and Family Court, the best
interests of the child is the touchstone inquiry. See Custody
of Vaughn, 422 Mass. 590, 595 (1996). Where, as here, the
plaintiff requested custody as part of her application for a
209A order, the judge did not err by extending the custody
order, and he was not required to make detailed factual
findings. 3
Order dated November 15,
2022, extending G. L. c.
209A order, affirmed.
By the Court (Green, CJ.,
Blake & Henry, JJ. 4),
Clerk
Entered: December 11, 2023.
3 The plaintiff's request for attorney's fees and costs is
denied.
4 The panelists are listed in order of seniority.
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