C.O. v. B.J. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff obtained an abuse prevention order against the defendant pursuant to G. L. c. 209A, § 3. On appeal, the defendant contends that the plaintiff presented insufficient evidence to support the order, and that she committed fraud on the court by using an incorrect last name. Despite the sparse record appendix, see Mass. R. A. P. 18 (a), as amended, 425 Mass. 1602 (1997), we see no merit to the defendant's claims, and affirm.

Discussion. 1. Sufficiency. Generally, we do not review challenges to the sufficiency of the evidence in cases, such as this one, where the record appendix is lacking. Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995). Here, the defendant failed to append a complete record of his criminal history, copies of any past restraining orders, and copies of the “tons” of letters from the defendant to the plaintiff that the judge referenced. In any event, reviewing the transcript pages before us, we see no merit to the defendant's sufficiency challenge.

“We review the issuance of an order pursuant to G. L. c. 209A for an abuse of discretion or other error of law.” E.C.O. v. Compton, 464 Mass. 558, 561-562 (2013). A judge may issue a restraining order to protect “[a] person suffering from abuse from an adult or minor family or household member.” G. L. c. 209A, § 3. As applicable to this case, “[f]amily or household members” include persons who “are or were married to one another,” and “[a]buse” includes “placing another in fear of imminent serious physical harm.” G. L. c. 209A, § 1. A plaintiff must show abuse by a preponderance of the evidence. MacDonald v. Caruso, 467 Mass. 382, 386-387 (2014).

Here, the judge considered the defendant's unrefuted violent criminal past, and history of restraining order violations. She also factored the plaintiff's testimony that the defendant, her ex-husband, had threatened to kill her and her loved ones for years. This evidence sufficiently supported a finding of imminent serious physical harm and the issuance of the restraining order, despite the defendant's incarceration. See Commonwealth v. Ditsch, 19 Mass. App. Ct. 1005, 1005 (1985) (threat to commit crime may be carried out by “an agent” even when principal incarcerated). On this evidence, we discern no abuse of discretion.

2. Fraud on the court. The defendant's claim that the plaintiff committed fraud on the court also lacks merit. There is no record evidence to suggest that the plaintiff supplied the court with an incorrect name. In any event, even if the plaintiff had applied for a restraining order under a false name, her use of an incorrect name, without more, would not have constituted fraud on the court. See Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 730 (2006) (fraud on court requires “unconscionable scheme calculated to interfere” with fairness of proceeding or presentation of claim or defense). Accordingly, we see no reason to vacate the properly issued abuse protection order.

Order issued October 17, 2014, affirmed.