S.M. v. R.M. ( 2024 )


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  • 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
    2
    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),
    3
    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
    4
    
    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.
    5
    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
    6
    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."
    7
    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
    8
    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.
    9
    

Document Info

Docket Number: 23-P-0282

Filed Date: 10/11/2024

Precedential Status: Non-Precedential

Modified Date: 10/11/2024