K.K. v. R.G. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the issuance of an ex parte abuse prevention order, pursuant to G. L. c. 209A, as well as from a one-year order issued after an evidentiary hearing. He argues that the ex parte order should not have been entered because the evidence was insufficient, and that the judge had an apparent conflict of interest. The defendant also contends that, because the ex parte order should not have issued, the subsequent order was also invalid. We affirm.

As to the one-year order, the defendant failed to provide a sufficient record for appellate review. Notably, and critically, he declined to provide a transcript of the evidentiary hearing.² “As appellant, it is the defendant's obligation to provide an adequate record for review.” Smith v. Jones, 67 Mass. App. Ct. 129, 134 (2006). The record on appeal includes transcripts of “those proceedings relevant to the appeal that were recorded by a court reporter.” Mass. R. A. P. 8 (b) (1) (A), as appearing in 481 Mass. 1611 (2019). If a trial court proceeding is relevant to an issue, and no other evidence of what transpired at the proceeding exists in the record, an appellate court may decline to review that issue if the appellant fails to provide a transcript of the proceeding. See, e.g., Ford Mktg. Corp. v. Hartford Ins. Co., 5 Mass. App. Ct. 891, 891 (1977). By failing to provide a copy of the transcript of the evidentiary hearing, the defendant waived appellate review of the one-year order.

The ex parte order is also not properly before us, although for a different reason. Where, as “here, the defendant had the right -- and an opportunity -- to be heard in the trial court about the extension of the ex parte order and, when it was extended, he had the right to be heard in [the Appeals Court] on the issue whether that decision was proper. What he does not have is the right to relitigate the issuance of the ex parte order itself, because that matter is moot.” C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 565 (2017). See V.M. v. R.B., 94 Mass. App. Ct. 522, 524-525 (2018). Cf. Allen v. Allen, 89 Mass. App. Ct. 403, 405 (2016) (no right to appeal ex parte abuse prevention order that was terminated). Thus, the merits of the ex parte order are not properly before us.³

However, the same cannot be said of the defendant's assertion that, based on certain comments the judge made during the ex parte hearing, the judge should have recused himself. Because that hearing was ex parte, and there is nothing to suggest that the transcript would have been available to the defendant prior to the evidentiary hearing, it does not appear that he had a chance to litigate the issue at the evidentiary hearing. We therefore consider the issue here.

The defendant correctly notes that S.J.C. Rule 3.09, Canon 2, Rule 2.11(A) (2016), provides that “[a] judge shall disqualify him or herself in any proceeding in which the judge cannot be impartial or the judge's impartiality might reasonably be questioned.”⁴ The defendant claims that two comments of the judge during the ex parte hearing demonstrate that the judge should have sua sponte disqualified himself. First, at the outset of the hearing, the judge commented that it had “been a long time” since he had seen the plaintiff, to which the plaintiff answered only, “Yes.” Near the conclusion of the hearing, the judge inquired after an attorney (who was not involved in this case) and asked the plaintiff to say hello to the attorney on the judge's behalf. The plaintiff simply responded, “He's very good. Thank you.”

The judge's two brief comments gave no indication that his knowledge of the plaintiff was either current or had been of any significance in the past. Nor did the passing comments give any indication of bias. The comments were not interspersed in the hearing and, when viewed in context, appear to be nothing more than casual exchanges such as often occur at the beginning or the end of a court proceeding. Cf. Haddad v. Gonzales, 410 Mass. 855, 862 (1991) (judge's stray comments were “indications of impatience rather than bias” when viewed in context). On this record, we are not persuaded by the defendant's claim that the judge was required to recuse himself.

Order entered March 2, 2020, affirmed.

FOOTNOTES

2.   Based on oral argument, it appears that the failure to provide the transcript was deliberate in light of the evidence that the plaintiff suggests was adduced at that hearing.

3.   Even were we to consider the defendant's argument that the evidence was insufficient to support the issuance of the ex parte order, we would not be persuaded by it. The judge could credit the plaintiff's statement that she was currently in fear of imminent physical harm from the defendant. Moreover, the plaintiff's affidavit alleged a litany of concerning and threatening behaviors, including those crossing customary physical boundaries, which amply buttressed the conclusion that her fear was objectively reasonable. See Commonwealth v. Gordon, 407 Mass. 340, 349 (1990) (“In determining whether an apprehension of anticipated physical force is reasonable, a court will look to the actions and words of the defendant in light of the attendant circumstances”).

4.   The defendant incorrectly relies on S.J.C. Rule 3.09, Cannon 2, Rule 2.11(A)(2)(a) (2016), which concerns situations where the judge or the judge's spouse, or a person within the third degree of relationship to either of them, is a party, “officer, director, general partner, managing member, or trustee of a party.” The defendant appears to misread this section of the rule to apply to situations where the judge may simply know a party.