V.V.1 v. M.I. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On September 20, 2019, Judge Harrington denied via telephone call V.V.'s request for an emergency restraining order on behalf of his minor daughter, L.V. On September 23, 2019, Judge Brennan issued a temporary restraining order pursuant to G. L. c. 209A (temporary order) against the defendant, M.I. On September 27, 2019, Judge Hourihan extended the temporary order for one year (extension order). M.I. appeals from the temporary order and the extension order. He claims that the temporary order was precluded by res judicata because the September 20 denial constituted a final judgment. He also claims that Judge Hourihan abused his discretion in extending the temporary order.³ We affirm.

1. Res judicata. M.I. claims that the temporary order issued on September 23 is precluded by res judicata because the September 20 denial was a final judgment. We disagree. We note that M.I.'s counsel, present at both the temporary order and extension hearings, failed to raise this issue, and therefore it is waived. See G.B. v. C.A., 94 Mass. App. Ct. 389, 397 (2018).

Even on the merits, M.I. has not met his burden to show that the September 20 telephone call resulted in a final judgment. See TLT Constr. Corp. v. A. Anthony Tappe & Assocs., 48 Mass. App. Ct. 1, 4-5 (1999). First, it is unclear on what grounds Judge Harrington denied the restraining order as there is no transcribed record for us to review. The hearing took place over a telephone call, to which the only witness, Officer Roberts, claimed he was “puzzled” as to why Judge Harrington denied the request but had left open the option for a harassment prevention order. See id. at 5 (reviewing court will look to record to “see what was actually litigated”). In all, the emergency hearing lacked the elements of adjudicatory procedure for res judicata to apply. See id. at 9 (arbitration award had adjudicatory elements sufficient to constitute final judgment).

2. Extension order. M.I. claims that Judge Hourihan abused his discretion in extending the temporary order. Specifically, he claims that Judge Hourihan simply “rubberstamped” L.V.'s affidavit and that L.V. did not meet her burden to prove that she was abused and in imminent fear of M.I. We disagree. Judge Hourihan conducted a full hearing where he heard arguments from counsel and testimony from several witnesses, asked the witnesses questions, and reviewed exhibits.

M.I. claims that Judge Hourihan's comments to the parties that they cannot object and that the hearing was “not a criminal trial” demonstrated he “rubberstamped” L.V.'s affidavit. However, Judge Hourihan was correct in stating that a hearing pursuant to G. L. c. 209A is civil, and the rules of evidence “need not be followed, provided that there is fairness in what evidence is admitted and relied on.” Frizado v. Frizado, 420 Mass. 592, 597-598 (1995).⁴ Furthermore, Judge Hourihan's decision not to view the surveillance video or admitting in evidence photographs of L.V.'s bruise was well within his discretion.⁵ See Vineyard Grove Co. v. Oak Bluffs, 265 Mass. 270, 277 (1928) (admission or exclusion of evidence is within discretion of trial judge). Ultimately, M.I. was given an opportunity to challenge the credibility of L.V.'s affidavit, and although fundamental fairness required Judge Hourihan to conduct a fair hearing, it did not require him to adopt M.I.'s view of the evidence. See Frizado, supra at 598.

Nor did Judge Hourihan abuse his discretion in extending the temporary order, as L.V.'s affidavit, testimony, and exhibits amply established that M.I. caused physical harm and that L.V. was in imminent fear of M.I. See MacDonald v. Caruso, 467 Mass. 382, 386 (2014) (plaintiff seeking extension of abuse prevention order must prove by preponderance of evidence “that the defendant has caused or attempted to cause physical harm, committed a sexual assault, or placed the plaintiff in reasonable fear of imminent serious physical harm”).

As explained above, Judge Hourihan conducted a full hearing, which gave M.I. the opportunity to challenge the credibility of L.V.'s affidavit. Judge Hourihan questioned M.I. directly about the photograph of the bruise on L.V.'s arm. M.I. admitted he reached for L.V.'s arm, and L.V. confirmed that he bruised her. Text messages and testimony from M.I.'s father also corroborated the abuse. “A plaintiff need not wait until an assault occurs to seek protection, although ‘[i]f the plaintiff were suffering from attempted or actual physical abuse, see G. L. c. 209A, § 1 (a), ․ there is no question that an extension should be granted.’ ” M.B. v. J.B., 86 Mass. App. Ct. 108, 117 (2014), quoting Iamele v. Asselin, 444 Mass. 734, 740 n.3 (2005).

Judge Hourihan also heard testimony about school personnel privy to the situation. Officer Roberts testified that the school adjustment counselor told L.V. to break up with M.I. in public and with Officer Roberts present. See Corrado v. Hedrick, 65 Mass. App. Ct. 477, 484 (2006) (credibility assessments are province of trial judge). Additionally, text messages revealed M.I. had threatened to kill himself if L.V. broke up with him. See Vittone v. Clairmont, 64 Mass. App. Ct. 479, 486 (2005) (“The judge will look to the defendant's words and actions, not standing alone or in a vacuum, but in the context of the ‘attendant circumstances’ ” [citation omitted] ). L.V. testified that she was afraid, which was corroborated by Ms. Moynihan's testimony.⁶ “Indeed, the nature and duration of a relationship, as well as any prior history of violence, threats, or hostility within it, serve as the necessary backdrop for ․ assessing the reasonableness of an applicant's fear of imminent serious physical harm.” Id. at 487. See C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 563 (2017) (in acting on 209A order or extension, judge may consider entire history of parties' relationship). In that light, M.I. merely quibbles with credibility, which is the province of the trial judge. See Corrado, supra.

Order dated September 27, 2019, affirmed.

FOOTNOTES

3.   M.I. also claims that the temporary restraining order should not have issued. “[A] defendant is not entitled to relitigate each stage of the proceedings.” C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 564 (2017). M.I.'s counsel appeared at both the temporary restraining order hearing and the extension hearing, and M.I. testified at the latter. Therefore, he had notice and the opportunity to be heard in the trial court about the extension of the temporary order. See id. at 565. Accordingly, M.I.'s appeal with respect to the temporary order is moot as the extension order superseded it. See id.

4.   From the transcript, Judge Hourihan's comment that “[t]his is a civil matter” appears to have been an attempt to refocus the parties.

5.   With respect to the surveillance video, Officer Roberts testified that the “footage isn't that great” and that he could not “pinpoint who's who in the footage.”

6.   M.I. claims that Judge Hourihan failed to question L.V. directly about the inconsistencies in her affidavit. However, Judge Hourihan was entitled to credit her affidavit. See Corrado, 65 Mass. App. Ct. at 484. Furthermore, M.I.'s counsel chose not to question L.V. during the hearing despite being given the opportunity to do so.