L.A. v. J.A. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is an appeal from a decision of a District Court judge extending an abuse prevention order for a period of one year. See G. L. c. 209A, § 3. J.A. appeals, claiming that the judge committed reversible error by failing to hold an evidentiary hearing, and by improperly shifting the burden of proof to him. On the basis of the facts and record before us, we are not persuaded that an error was committed, and affirm the extension of the order.

Background. A brief history of the factual and procedural history of the appeal is necessary to set the contentions of the parties in their proper context.

L.A. first obtained an ex parte order on July 27, 2017. As of the date of the proceedings upon which this appeal is based, she had had two extensions of that order. In addition, four modifications were made to the c. 209A orders by a judge of the Probate and Family Court to permit (among other things) J.A. to have supervised parenting time with his children at a visitation center, the exchange of the children to take place at one of several enumerated police stations.

There are several affidavits in the record from L.A. in support of her request for the orders. The content of these affidavits, which the District Court judge impliedly credited, may be summarized as follows. J.A. is a veteran of the war in Afghanistan who suffers from bipolar disorder, and has been determined to be one hundred percent disabled by the Veterans' Administration for posttraumatic stress disorder. He has “violent flashbacks and nightmares about his time in combat, including the killing of civilian women and children.” He pushed L.A., grabbed her with two hands, and shoved her hard. He pushed her when the children were present and on one occasion when she was holding one of them. He yelled in her face, “If you don't stop, I'm going to hurt you.” At one point in 2016 he choked her. He also suffers from and has sought inpatient treatment for a substance abuse disorder.

She remains in fear because of the past history and because it does not appear that he is “currently receiving necessary treatment for his various psychiatric issues.” By way of example she states that he recently became “extremely angry” when a FaceTime call with the children ended, sometimes missed the scheduled calls, and wrote a note to his daughter which misspelled her name and got her age wrong. The latter incident scared L.A. because it indicated that “his mental health is still not good.” She states that she is afraid that without an abuse prevention order “he will come to our house any time he feels like it in an explosive rage.” Under outstanding Probate and Family Court orders, incorporated into the abuse prevention order at issue, L.A. and J.A. communicate only by e-mail. Text messages by L.A. to J.A. are permitted in an emergency concerning the children.

At the hearing on the extension order at issue here, the case proceeded on representations of counsel. No one was sworn and no testimony was taken from either party, who were both present. J.A.'s counsel represented that there had not been any violations, modifications, contempt complaints, or other issues since the last order, and that communication was limited by the Probate and Family Court orders. L.A.'s counsel represented that there remained unresolved financial issues in the divorce case, that there was still a high degree of hostility in the relationship, and that L.A. remained in fear of abuse if the order were lifted.

Discussion. We review the extension of an abuse prevention order for an abuse of discretion. E.C.O. v. Compton, 464 Mass. 558, 561-562 (2013). Although J.A. was entitled to an evidentiary hearing upon request, see C.O. v. M.M., 442 Mass. 648, 656 (2004), citing Frizado v. Frizado, 420 Mass. 592, 597 (1995), J.A. did not ask for one and the issue is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006). Regardless, “[a] two-party hearing in a c. 209A matter is like any other contested civil proceeding.” Guidelines for Judicial Practice: Abuse Prevention Proceedings § 5.01 commentary (2011) (Guidelines). In that sense the parties may proceed by representation and affidavit if they so choose. See Vittone v. Clairmont, 64 Mass. App. Ct. 479, 481 n.4 (2005) (procedure was fair where “case went in largely on the representations of counsel as well as on the plaintiff's affidavit, the defendant's criminal convictions and, it appears, on the defendant's history of prior restraining orders” without objection by either party). The plaintiff is permitted to satisfy her burden of proof by submitting affidavits that are provided to the defendant, provided he has sufficient language facility to read them. See Frizado, supra; Guidelines, supra. Here J.A. was represented by counsel, and there is naught in the record to suggest he was unaware of the content of the affidavits.² The judge did not abuse her discretion in hearing the matter on representations, where that was the manner in which the parties chose to proceed.

L.A.'s affidavits and her representations of ongoing fear satisfied her burden of proof. First, she indicated a subjective fear of ongoing physical harm in the absence of an order, fear which was reasonable in light of past abuse. See Iamele v. Asselin, 444 Mass. 734, 740 (2005). “The fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order.” G. L. c. 209A, § 3. See Iamele, supra at 738. Second, there was ongoing litigation arising out of the divorce, proceedings which were described in the papers as acrimonious, and in which the Probate and Family Court judge had issued highly restrictive orders regarding communication. Id. (denoting ongoing custody and other litigation as factor to consider in issuing abuse prevention order). Third, L.A. had suffered past physical abuse. “[W]hen a plaintiff has suffered physical abuse, a judge may reasonably conclude that a c. 209A order is necessary ‘because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent.’ ” Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 187 (2020), quoting Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014). L.A. satisfied her burden of proof, and the judge did not shift the burden to J.A. when she asked for J.A.'s response to L.A.'s request for an extension of the order.

Abuse prevention extension order dated August 9, 2019, affirmed.

FOOTNOTES

2.   J.A.'s contention that the District Court judge was unaware of the content of the affidavits is similarly unsupported.