M.I. v. A.I. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from the denial of his motion to terminate ² a permanent abuse prevention order issued under G. L. c. 209A (c. 209A order). We affirm.

We review the motion judge's decision for an abuse of discretion. See MacDonald v. Caruso, 467 Mass. 382, 383 (2014). On appeal, the defendant challenges the veracity of the plaintiff's original affidavit wherein she stated that the defendant physically assaulted her ³ and contends that the timing of her application for the original c. 209A order suggests its use to obtain an advantage in the parties' divorce proceedings. The defendant also challenges the plaintiff's evidentiary showings at each of the hearings extending the original c. 209A order. Additionally, he asserts that the record does not support a finding that the plaintiff feared imminent harm. None of these arguments, however, support termination of the c. 209A order. A motion to terminate an abuse prevention order is not “an opportunity for a defendant to challenge the underlying [bases] for the order or to obtain relief from errors correctable on appeal.” MacDonald, 467 Mass. at 388. See C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 565 (2017) (where defendant did not challenge original ex parte order, and had opportunity to challenge extension of order and appeal when extended, defendant had no right to relitigate ex parte order itself).

Instead, a defendant bringing a motion to terminate a permanent abuse prevention order must prove, by clear and convincing evidence, a significant change in circumstances since the entry of the order that justifies its termination. See L.L. v. M.M., 95 Mass. App. Ct. 18, 22 (2019). The defendant's only arguments in this regard are that (1) he has severed ties to Peabody, and (2) he no longer practices or teaches dentistry. The judge did not abuse her discretion in finding that these changes do not amount to the significant changed circumstances required for termination. MacDonald, 467 Mass. at 388-389.

Order denying motion to terminate permanent abuse prevention order affirmed.

FOOTNOTES

2.   The defendant styled the motion as a motion to vacate the c. 209A order; however, the order's validity is not at issue. The defendant sought prospective relief only; thus, he sought to terminate, not vacate, the c. 209A order. See Iamele v. Asselin, 444 Mass. 734, 742 (2005).

3.   Specifically, he states that no police records exist corroborating her statement.