S.M. v. R.M. ( 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-282
S.M.
vs.
R.M.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, R.M., appeals from the extension of an abuse
prevention order issued pursuant to G. L. c. 209A, § 3. The
plaintiff, S.M., is the defendant's wife, and the two are amid
divorce proceedings and a custody battle over their minor child.
The plaintiff originally sought an abuse prevention order
against the defendant in the Probate and Family Court on January
10, 2022, but her request was denied. On September 21, 2022,
after new allegations emerged, a District Court judge issued an
abuse prevention order against the defendant ex parte. After a
hearing on October 4, 2022, the order was extended for one year.
The judge subsequently denied the defendant's motion for
reconsideration and to vacate the order.
On appeal, the defendant claims that the judge erred or
abused his discretion in extending the abuse prevention order
because: (1) principles of res judicata barred the judge from
considering the plaintiff's affidavit filed in support of the
January 2022 request for an abuse prevention order; (2) the
plaintiff failed to prove by a preponderance of the evidence
that she was reasonably in fear of imminent, serious physical
harm; and (3) the defendant was denied a meaningful opportunity
to be heard. We affirm.
Discussion. A decision to extend an abuse prevention order
is reviewed "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]
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" (quotation and citation
omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
As we review the judge's decision allowing the plaintiff's
request for an extension of her protective order, "we will not
substitute our judgment for that of the trier of fact. We do,
however, scrutinize without deference the propriety of the legal
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criteria employed by the trial judge and the manner in which
those criteria were applied to the facts" (quotation and
citation omitted). Iamele v. Asselin, 444 Mass. 734, 741
(2005). "We accord the credibility determinations of the judge
who 'heard the testimony of the parties . . . [and] observed
their demeanor' . . . the utmost deference." Ginsberg v.
Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006), quoting Pike v.
Maguire, 47 Mass. App. Ct. 929, 929 (1999).
The defendant first claims that the judge erred in relying
on the allegations of abuse contained in the plaintiff's January
2022 affidavit because a Probate and Family Court judge
previously denied the request for an abuse prevention order
based on that affidavit, and principles of res judicata prevent
the plaintiff from relitigating those claims of abuse. We
disagree.
"The term 'res judicata' includes both claim preclusion,
also known as true res judicata, and issue preclusion,
traditionally known as collateral estoppel." Mancuso v.
Kinchla, 60 Mass. App. Ct. 558, 564 (2004). "Claim preclusion
makes a valid, final judgment conclusive on the parties and
their privies, and prevents relitigation of all matters that
were or could have been adjudicated in the action." Kobrin v.
Board of Registration in Med., 444 Mass. 837, 843 (2005),
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quoting O'Neill v. City Manager of Cambridge, 428 Mass. 257, 259
(1998). "The invocation of claim preclusion requires three
elements: '(1) the identity or privity of the parties to the
present and prior actions, (2) identity of the cause of action,
and (3) prior final judgment on the merits.'" Kobrin, supra,quoting DaLuz v. Department of Correction, 434 Mass. 40, 45
(2001). On the other hand, collateral estoppel "provides that
'[w]hen an issue of fact or law is actually litigated and
determined by a valid and final judgment, and the determination
is essential to the judgment, the determination is conclusive in
a subsequent action between the parties, whether on the same or
a different claim.'" McLaughlin v. Lowell, 84 Mass. App. Ct.
45, 56 (2013), quoting Alba v. Raytheon Co., 441 Mass. 836, 841
(2004). "To consider the applicability of issue preclusion, 'we
look to the record to see what was actually litigated' in the
prior proceedings." G.B. v. C.A., 94 Mass. App. Ct. 389, 397
(2018), quoting Kobrin, supra at 844.
Here, the defendant's assertions of both claim and issue
preclusion fail for lack of a full record demonstrating that the
Probate and Family Court issued a final judgment. The
defendant, as the appellant, had the burden of providing us with
a complete record, see Mass. R. A. P. 18 (a), as appearing in
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481 Mass. 1637 (2019), and he has failed to do so here.1 The
transcript for the extension hearing reflects confusion amongst
the parties themselves as to what happened in the Probate and
Family Court. From the limited information available, the
District Court clerk was able to gather that the plaintiff filed
an affidavit and complaint for protection from abuse on January
10, 2022; the order was not issued at the ex parte hearing; the
parties were directed to appear for a scheduled hearing, which
did not occur; and the docket reflects that the complaint was
simply "denied." Thus, on the record before us, we cannot
determine that a final judgment entered. Moreover, we are
unable to ascertain what was actually litigated in the Probate
and Family Court, or the basis of the judge's denial of the
request for an abuse prevention order. See G.B., 94 Mass. App.
Ct. at 397 n.13 (unable to determine reasons judges declined to
issue requested stay away orders without hearing transcripts).
Accordingly, res judicata does not apply here.
The defendant next claims that the plaintiff failed to meet
her burden of establishing sufficient evidence warranting
extension of the order. He submits that because the judge found
the evidence related to the allegations contained in the
1 The only document concerning the Probate and Family Court
matter that is contained in the record before us is the
plaintiff's typed affidavit.
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September 2022 affidavit insufficient, standing alone, to
justify the order; the judge impermissibly relied on evidence of
past abuse; and the plaintiff was impeached numerous times
during her testimony, the judge abused his discretion or
otherwise erred in extending the order.
"Our cases are clear that '[i]n evaluating whether a
plaintiff has met her burden, a judge must consider the totality
of the circumstances of the parties' relationship.'" G.B., 94
Mass. App. Ct. 389, 393 (2018), quoting Iamele, supra at 740.
"Indeed, in evaluating whether an initial 209A order or its
extension should issue, the judge must 'examine the words and
conduct in the context of the entire history of the parties'
hostile relationship'" (quotation omitted). G.B., supra at 393-
394, quoting Vittone v. Clairmont, 64 Mass. App. Ct. 479, 487
(2005). " Although a person seeking an abuse prevention order
(and extension) based on 'fear of imminent serious physical
harm' must always show that he or she is currently in fear of
imminent serious physical harm, and that such fear is
reasonable," the same is not required of a person seeking an
order, or an extension of such an order, "based on having
already been subject to physical harm." Callahan v. Callahan,
85 Mass. App. Ct. 369, 374 (2014). "In that circumstance, the
'abuse' is the physical harm caused, and a judge may reasonably
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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."
Id., citing Vittone, supra at 489 (some wounds so traumatic that
passage of time alone does not mitigate victim's fear of
perpetrator).
Contrary to the defendant's claim, the judge did not solely
rely on the January 2022 affidavit, but instead considered the
totality of the circumstances, as he was required to do. The
judge explicitly credited the plaintiff's testimony of past
physical abuse and ongoing hostility in connection with child
custody and divorce proceedings, and the September 2022
affidavit, in addition to the plaintiff's testimony, described
that ongoing hostility.2 We see no reason to disturb the judge's
credibility determinations, even considering impeachment
testimony. See Ginsberg, 67 Mass. App. Ct. at 140 n.3.
Therefore, the judge could have found that the plaintiff met her
burden of establishing that extension of the order was necessary
2 For this reason, the defendant's claim that the judge
misapplied Iamele, 444 Mass. at 739-740, is without merit. In
addition, in his denial of the defendant's motion to reconsider,
the judge held that he was "satisfied that the plaintiff's
description of past physical abuse, coupled with the ongoing
hostility in connection with child custody and divorce
proceedings warranted extension of the order."
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to protect her from the impact of family violence. See
Callahan, 85 Mass. App. Ct. at 375.
Finally, the defendant claims that he did not have a
meaningful opportunity to oppose the allegations contained in
the January 2022 affidavit because he was only granted fourteen
minutes to review it, relying on Idris I. v. Hazel H., 100 Mass.
App. Ct. 784 (2022). However, the defendant's reliance is
misplaced. In Idris I., the judge had before her evidence,
which the defendant did not have and had not seen, and the
defendant only became aware of such evidence once the plaintiff
referred to certain exhibits in response to a question posed by
the judge. Id. at 789. Without responding to the defendant's
objections, the judge allowed the plaintiff's attorney to
continue his direct examination of the plaintiff. Id. This
court concluded that the judge improperly considered evidence
that the defendant had not seen at all, and thus was completely
unable to challenge. Id. at 789-790. Here, by contrast, the
defendant was granted time to review the affidavit prior to the
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beginning of the plaintiff's testimony, which sufficiently
provided him a meaningful opportunity to challenge the evidence.
Order extending G. L. c. 209A
order affirmed.
Order denying motion for
reconsideration and to
vacate G. L. c. 209A order
affirmed.
By the Court (Meade,
Hershfang & Toone, JJ.3),
Clerk
Entered: October 11, 2024.
3 The panelists are listed in order of seniority.
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