E.O. v. P.D. (and a companion case 1). (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, P.D., appeals from orders entered in 2017, 2018, and 2019 extending a G. L. c. 209A order that originally issued against him in 2016.³ We affirm.

Procedural history. In October of 2016, E.O. obtained an ex parte c. 209A order against P.D. Following an evidentiary hearing attended by both parties in November of 2016, the order was extended for one year. In November of 2017, 2018, and 2019, following hearings at which both parties were present,⁴ the c. 209A order was extended by different judges. P.D. appeals from each of these orders.⁵

Discussion. We review the issuance of a c. 209A order “for an abuse of discretion or other error of law.” E.C.O. v. Compton, 464 Mass. 558, 562 (2013). “[A] judge's discretionary decision constitutes an abuse of discretion where [the reviewing court] conclude[s] 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” (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). “[I]n order to obtain an extension [of a c. 209A order], a plaintiff must make the same showing as required in the initial hearing, ․ ‘no presumption arises from the fact that a prior order has issued.’ ” Gassman v. Reason, 90 Mass. App. Ct. 1, 6 n.6 (2016), quoting Smith v. Jones, 75 Mass. App. Ct. 540, 544 (2009).⁶ A judge considers, among other factors, the basis for the initial order, “the defendant's violations of protective orders, ongoing ․ litigation that engenders or is likely to engender hostility, the parties' demeanor in court, ․ [and] the likelihood that the parties will encounter one another in the course of their usual activities ․, and significant changes in the circumstances of the parties.” Iamele v. Asselin, 444 Mass. 734, 740 (2005). No single factor governs, “[i]t is the totality of the conditions that exist at the time that the plaintiff seeks the extension, viewed in the light of the initial abuse prevention order, that govern.” Id. at 741. “In reviewing the judge's decision to [allow] the plaintiff's request for an extension of her protective order, ‘we will not substitute our judgment for that of the trier of fact’ ” (citation omitted). Id. A judge's discretion has been described as “wide” in issuing a c. 209A order. Smith v. Jones, 75 Mass. App. Ct. 540, 544 (2009).

Because P.D. raises similar issues regarding the different extension hearings, we address P.D.'s arguments by subject.

1. Sufficiency of the evidence. a. Substantive dating relationship. P.D. argues that E.O. failed to prove that they were in a substantive dating relationship. In each hearing, however, E.O. testified to the dating relationship between the parties.⁷ The fact that E.O. did not call P.D. by the title of “boyfriend” is not determinative. See E.C.O., 464 Mass. at 564 (holding that three-month relationship “that involved regular mutual communication” was substantial dating relationship). Each of the hearing judges credited E.O.'s testimony and found that the parties had a substantive dating relationship, a determination we “accord ․ the utmost deference” (citation omitted). Id. at 562. The judges were able to hear testimony from both parties and had the full record before them. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509-510 (1997) (“the judge, who has a firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence” [quotation and citation omitted] ). P.D.'s arguments that E.O.'s testimony was not credible and that she failed to introduce documentary evidence in support of her testimony are misplaced. Credibility of the witnesses is an issue for the fact finder to resolve. It is “not [a] proper subject[ ] for appeal.” Commonwealth v. King, 445 Mass. 217, 235 (2005).

P.D. raises for the first time on appeal from the 2017 and 2018 orders the argument that he lacked capacity to enter into a substantive dating relationship because he was intoxicated when the parties first were physically intimate. Leaving aside that E.O. testified that the parties' dating relationship extended over several months, this too was a matter of credibility for the hearing judges.

b. Reasonable fear of imminent physical harm. P.D. argues that the fact that E.O. did not file her initial complaint for seven days after the 2016 incident shows that she was not in fear of imminent physical harm. P.D. did not raise this argument in the 2017, 2018, or 2019 extension hearings; accordingly, this argument is waived. See Palmer v. Murphy, 42 Mass. App. Ct. 334, 338 (1997). In any event, this fact goes to the credibility of the witnesses and is not a proper subject for appeal. See King, 445 Mass. at 235. At each hearing, the respective judge found credible E.O.'s testimony about the events leading to the 2016 orders and her continued fear of P.D., findings to which we defer. See E.C.O., 464 Mass. at 562.

P.D. also argues that the judges at the 2017, 2018, and 2019 extension hearings erred by not finding a change in circumstances such that extension of the c. 209A order was not warranted. However, the evidence establishes that the parties continued to study, attend class, and work at the same university and thus could come into contact, and that the criminal proceedings were pending until after the 2019 hearing. On the record before us, there was no abuse of discretion. See L.L., 470 Mass. at 185 n.27.

2. Due process. P.D. argues that the judges improperly relied on a pending criminal case against him.⁸ None of the judges referred to the pending criminal case in entering their findings extending the c. 209A order.⁹ Rather, they properly inquired about the pendency of the criminal case as a factor in determining the potential for ongoing contact between the parties. See Iamele, 444 Mass. at 740 (factor to consider is “ongoing ․ litigation that engenders or is likely to engender hostility”). We discern no error.

In addition, P.D. argues that, over his objection, the judge who had presided over various motions in his “linked” criminal case also presided over the 2019 extension hearing in violation of his due process rights.¹⁰ “The law concerning recusal of a judge is well established: the decision to withdraw rests first within [her] sound discretion.” Matter of a Care & Protection Summons, 437 Mass. 224, 239, (2002). “Although it is possible that an unfavorable disposition could develop during prior proceedings, where that disposition is not ‘so extreme as to display clear inability to render fair judgment,’ it does not warrant recusal for bias.” Id. at 240, quoting Liteky v. United States, 510 U.S. 540, 551 (1994). The record does not support a claim that the 2019 hearing judge, or any hearing judge, was biased.

3. Personal jurisdiction. P.D. argues that the trial court did not have personal jurisdiction over him such that the judges could impose the affirmative obligation to surrender firearms. The record before us shows, and at oral argument P.D. conceded, that he does not own any firearms. We do not engage in theoretical arguments.¹¹

The orders dated November 9, 2017, November 9, 2018, and November 8, 2019, are affirmed.

So ordered

Affirmed

FOOTNOTES

3.   We note that E.O. did not file a brief in these appeals.

4.   The November 9, 2017 hearing recording was inaudible, therefore the parties appeared before the judge on August 3, 2018, for a hearing to reconstruct the record pursuant to Mass. R. A. P. 8 (e) (3), as appearing in 481 Mass. 1611 (2019). References to the 2017 hearing are to that reconstruction.

5.   P.D. filed his notice of appeal of the 2017 order prior to filing a motion to vacate order. Pursuant to Mass. R. A. P. 4 (a) (3), as appearing in 481 Mass. 1603 (2019), “[a] notice of appeal filed before the disposition of any timely motion [for relief from judgment under Mass. R. Civ. P. 60] shall have no effect.” Because the issues in the different appeals overlap, we address the merits of P.D.'s appeal of the 2017 order.

6.   Though Gassman considered the extension of a G. L. c. 258E order, we construe c. 258E and c. 209A similarly, as we have in numerous prior cases. See, e.g., A.P. v. M.T., 92 Mass. App. Ct. 156, 161 (2017), and cases cited.

7.   At the 2017 hearing, E.O. testified that the parties had a dating relationship, that they went to dinner several times, that P.D. came over several times, and that he gave her a birthday present. At the 2018 hearing, E.O. testified that she and P.D. dated for “[a] couple of months, and then there was a break, and then [the parties dated] again for another couple of months.” At the 2019 hearing, E.O. testified that she and P.D. went out to dinner “several times,” the parties were physically intimate, P.D. sent her a birthday present, and that the parties spent “several evenings together.” At the 2019 hearing, P.D. admitted that the parties had sexual relations.

8.   It is not clear if the criminal case involved one or more than one charge. For purposes of this appeal, it does not matter and for simplicity's sake we refer to the criminal case.

9.   While P.D.'s brief does not explicitly raise the issue of reliance on the pending criminal case in the 2019 extension hearing, we analyze this hearing here for its potential relevance to the recusal analysis.

10.   We also note that at the time of the 2019 extension hearing, the criminal case against P.D. had not yet been heard, and that P.D. subsequently was tried by a jury in the criminal case.

11.   To the extent that we do not discuss in detail all the arguments advanced by P.D., they have not been overlooked. We have considered them and find them without merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).