S.P. v. B.D. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, appearing pro se, appeals from an order denying his motion to terminate, or in the alternative to modify, a permanent G. L. c. 209A abuse prevention order entered against him in the Probate and Family Court. The defendant contends that the judge abused her discretion in denying his motion. We affirm.

Background. The following facts are taken from the limited record before us on appeal.² The complaint seeking an abuse prevention order was filed and granted in March 2014. The temporary order was first extended in April 2014 and the order was thereafter extended annually from April 2015 to April 2017. The defendant appealed from the extension to April 2017, and a different panel of this court affirmed. The order was extended permanently in April 2017. The defendant did not appeal from the permanent order. One year after the permanent order entered, the defendant filed a motion to have it terminated, or in the alternative, to modify the order. The motion was denied after a hearing attended by both parties, and the defendant appeals therefrom.

Discussion. The crux of the defendant's argument on appeal is that the permanent abuse prevention order is no longer needed. He emphasizes that the order is not needed as applied to the parties' children, because, the defendant avers, they are in the custody of the Department of Children and Families (DCF). He further contends that the judge erred by restricting his ability to present evidence regarding his change in circumstances. On the limited record before us, the defendant's arguments are unavailing.

In seeking to terminate the permanent order, the defendant was required to show by clear and convincing evidence that there has been “a significant change in circumstances since the order was issued, and whether, under the totality of the circumstances, the plaintiff, without the protection of an order of abuse prevention, would no longer reasonably fear imminent serious physical harm from the defendant.” MacDonald v. Caruso, 467 Mass. 382, 390-391 (2014). The denial of a motion to terminate a permanent abuse prevention order is reviewed for an abuse of discretion. See id. at 383. “We therefore ask whether ‘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.’ ” L.L. v. M.M., 95 Mass. App. Ct. 18, 22 (2019), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

On appeal and during the hearing on his motion to terminate or modify the permanent order, the defendant focused on circumstances that were in existence before entry of the permanent order. He points to involvement with his church for the past three to four years, volunteer history over the past four years, “ ‘actual’ problem-free parenting of his [fourteen] year old daughter” for the past four years, “remaining free of legal trouble since 2014,” completing an anger management program in 2015, participating in therapy “for about three years,” and taking parenting classes prior to the order becoming permanent. Because these actions predate the entry of the permanent order, the judge did not abuse her discretion in denying the defendant's motion.³ See MacDonald, 467 Mass. at 388 (defendant has burden of “proving a significant change in circumstances since the entry of the order that justifies termination of the order”). See also id. at 390-391. The other circumstances the defendant points to also fail to meet the standard for terminating an abuse prevention order.⁴

2. Lack of findings. The defendant also argues that the judge failed to make findings as required by MacDonald, 467 Mass. at 394 (“we direct judges to place their findings of fact regarding [a motion to terminate an abuse prevention order] on the record, regardless whether the motion is allowed or denied, to assist an appellate court in reviewing the determination on appeal”). Even assuming arguendo that the judge did not make findings, the transcript reflects no change in circumstances or basis for termination or modification of the permanent abuse prevention order. Therefore, we affirm.⁵

Order denying motion to terminate or modify permanent abuse prevention order affirmed.

FOOTNOTES

2.   Our review is hampered by an inadequate record appendix, which does not include a copy of the original abuse prevention order, the application, the affidavit, the extension orders, or the permanent order that the defendant seeks to vacate. See Camillo v. Camillo, 31 Mass. App. Ct. 286, 286-287 (1991).

3.   The defendant also argues that the judge erred in limiting the hearing to testimony. The rules of evidence do not apply to a hearing on an abuse prevention order and the documents that the defendant sought to offer related to circumstances that were in existence prior to the entry of the permanent order. See Frizado v. Frizado, 420 Mass. 592, 597-598 (1995). Moreover, the judge stated that she had “read all the DCF records.” Therefore, the judge did not abuse her discretion in precluding the defendant from offering additional documents in evidence.

4.   The defendant did not include the prior restraining order in the record on appeal, and he claimed during oral argument that DCF records were included in the record before this court. Contrary to this argument, the DCF records are not in the record appendix or included in the appellate record. See Commonwealth v. Woody, 429 Mass. 95, 97 (1999) (appellant bears responsibility to ensure record adequate for appellate review); Roby v. Superintendent, Mass. Correctional Inst., Concord, 94 Mass. App. Ct. 410, 412 (2018) (pro se litigant held to same standard as litigant represented by counsel). Even assuming the aforementioned records were included in the record on appeal, we do not see a “significant change in circumstances.” MacDonald, 467 Mass. at 388.

5.   “Other points, relied on by the defendant[ ] but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).