J.L. v. M.R. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, M.R., appeals from a Boston Municipal Court judge's order denying his motion to vacate a G. L. c. 209A abuse prevention order obtained by M.R.'s former girlfriend, plaintiff J.L. We affirm.

On February 7, 2019, J.L. sought and obtained an ex parte c. 209A order, alleging that the parties had had a fight and that M.R. had choked her, pulled her hair, “suffocat[ed] [her] head into the mattress,” and thrown her to the floor. At a hearing the next day, both parties appeared and testified; J.L. described the events recounted in her affidavit and stated that she feared that M.R. might cause her serious bodily injury unless an order was issued. The judge noted that J.L. was “visibly shaking, crying, [and] trembling” during her testimony. The judge extended the order for one year. M.R. did not appeal the order.

Several months later, M.R. filed a motion to vacate the order on the basis of what he asserted was newly discovered evidence calling J.L.'s credibility into question. Attached to the motion were M.R.'s affidavit, a police “call sheet,” and a police report. The judge held a motion hearing at which both parties testified. The judge stated that at the earlier hearing, he had found J.L. to be “sincere and real” and to be in fear of M.R. J.L. then testified once again about M.R.'s assault on her and stated that she still feared M.R. would harm her.² M.R. testified and offered innocent explanations or denials of the events as alleged by J.L. At the end of the hearing, the judge stated that, based in part on J.L.'s demeanor, he found her testimony credible “in its entirety,” and he did not credit M.R.'s testimony. He denied the motion to vacate, and M.R. appealed.

Once a c. 209A order is issued after a hearing satisfying due process requirements (and M.R. asserts no due process challenge to the February 2019 hearing), the order “should be set aside only in the most extraordinary circumstances and where it has been clearly and convincingly established that the order is no longer needed to protect the victim from harm or the reasonable fear of serious harm.” Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 781 (2005).³ M.R. made no such showing here.

On appeal, M.R. primarily argues that J.L.'s testimony was not credible. But we give the judge's credibility determinations “the utmost deference” (quotation omitted). Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 664 (2020). Nor has M.R. shown that the judge's findings were clearly erroneous. See Diaz v. Gomez, 82 Mass. App. Ct. 55, 62 (2012) (judge's findings in issuing c. 209A order are reviewed for clear error).

M.R. also argues that the order must be vacated because the judge made no express finding that J.L. had been physically abused or was in reasonable fear of imminent serious physical harm. See Iamele v. Asselin, 444 Mass. 734, 737 (2005). But “where we are able to discern a reasonable basis for the order in the judge's rulings and order, no specific findings are required.” Noelle N., 97 Mass. App. Ct. at 665, quoting G.B. v. C.A., 94 Mass. App. Ct. 389, 396 (2018).

That is all the more true here, where the burden was on M.R. to show “the most extraordinary circumstances” and to “clearly and convincingly establish[ ] that the order is no longer needed to protect the victim from harm or the reasonable fear of serious harm.” Mitchell, 62 Mass. App. Ct. at 781. Particularly in light of the judge's statement at the motion hearing that he credited J.L.'s testimony in its entirety -- which would include her testimony that she had been assaulted and remained in fear -- and that he did not credit M.R.'s testimony, there was no need for an explicit finding that J.L. needed protection from further assaults or had a reasonable fear of imminent serious physical harm. The judge plainly was not persuaded that the order was no longer needed. We see no abuse of discretion or other error in the judge's determination.

Order denying motion to vacate abuse prevention order affirmed.

FOOTNOTES

2.   J.L. also testified that in November of 2018, M.R. “went crazy” and “burned some of [J.L.'s] clothes,” putting her in fear, and that on February 6, 2019, M.R. had sent naked pictures of J.L. to her mother, her clients, and some of her friends.

3.   As the court later explained in MacDonald v. Caruso, 467 Mass. 382, 389 (2014):“Where the order a defendant seeks to terminate is only one year in duration, as it was in Mitchell ․ the defendant will have the opportunity within one year to challenge the continuation of the order at a hearing where the plaintiff will bear the burden of proving a continued reasonable fear of imminent serious physical harm. A motion prematurely to terminate such an order must be supported by more than a preponderance of the evidence to justify the burden, both on the plaintiff and the court, to revisit the order before its expiration. See [Mitchell, 62 Mass. App. Ct.] at 781 n.22 (‘Unwarranted requests to modify may themselves be a form of abuse and create a burden on the courts as well as on the opposing party’).”