M.S. v. M.N. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On June 19, 2018, the plaintiff sought an abuse prevention order against the defendant, alleging that he had come home acting “angry and aggressive,” dragged the plaintiff by her hair, hit and choked her, kicked her in the stomach, and threatened to kill her. An emergency ex parte abuse prevention order issued, and an extension hearing was held later that same day. After the hearing, which both the plaintiff and the defendant attended, a District Court judge extended the order for one year.

On June 18, 2019, the plaintiff appeared for a second extension hearing before a different judge. The defendant did not appear. At the start of the hearing, the plaintiff stated that she was seeking a permanent order, to which the judge replied, “I'm not going to give you a permanent. You want it extended for another year?” When the plaintiff responded affirmatively, the judge stated, “All right. I'll extend it for another year.” Counsel for the plaintiff then interjected and asked to “be heard briefly on the issue of a permanent order.” The judge replied, “I'm not going to give a permanent order, Counsel. It's only been a year since the order was entered. You want to put it on the record, you go ahead.” The judge took no evidence at the hearing.

On appeal the plaintiff argues that the judge committed reversible error by refusing to consider her request for a permanent order. We agree. To the extent the judge believed that she lacked the authority to enter a permanent order because only one year had passed since the initial extension, she erred as a matter of law. Although “[r]elief on an initial complaint is limited to one year,” at a subsequent renewal hearing, “a judge's discretion is broad: she may permit the existing order to expire without renewal; she may issue a permanent order; or she may issue an order of shorter duration of ‘any time reasonably necessary’ to protect the abused person.” Crenshaw v. Macklin, 430 Mass. 633, 635 (2000), quoting G. L. c. 209A, § 3.

Moreover, assuming the judge correctly understood the remedial options available to her, she still could not “refuse, on the basis of personal preference or philosophy, a request to give consideration to a permanent order permitted by G. L. c. 209A.” Lonergan-Gillen v. Gillen, 57 Mass. App. Ct. 746, 749 (2003). “The proper exercise of judicial discretion involves making a circumstantially fair and reasonable choice within a range of permitted options.” Id. at 748-749. As a result, “[w]here discretion to grant relief exists, a uniform policy of denying relief is error.” Id. at 749, quoting Berryman v. United States, 378 A.2d 1317, 1320 (D.C. 1977).

Here, the judge immediately denied the plaintiff's request to make the order permanent, without taking evidence and without giving the plaintiff the opportunity to be heard on the issue. It is thus evident that the judge did not exercise her discretion to consider the plaintiff's request, but instead “applie[d] a self-imposed limitation upon [her] remedial jurisdiction.” Lonergan-Gillen, 57 Mass. App. Ct. at 748. This was error. See id. at 747, 749 (judge erred in refusing to consider plaintiff's request for permanent order, based on apparent personal policy or preference, and without taking or referring to evidence).

So much of the June 18, 2019, order as denied the plaintiff's request for a permanent abuse prevention order is vacated, and the matter is remanded for the judge to consider the plaintiff's request in the first instance. The remainder of the June 18, 2019, order extending the abuse prevention order for one year remains in effect, subject to modification following a new hearing.

So ordered.

Vacated and remanded.