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B.Z. v. X.W. (2021)

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Appeals Court of Massachusetts.

B.Z. v. X.W.


Decided: April 30, 2021

By the Court (Rubin, Kinder & Desmond, JJ.1)


On March 6, 2019, the plaintiff applied for and obtained an emergency abuse prevention order under G. L. c. 209A, § 3 (209A order), against the defendant, her husband. A District Court judge extended the 209A order for one year after a hearing at which both parties appeared and testified. Seven months later, the defendant moved for reconsideration, challenging the sufficiency of the evidence supporting the extension. The defendant also claimed that he received inadequate translation services at the hearing, and that the plaintiff committed a fraud on the court. A different District Court judge (motion judge) denied the motion without a hearing. This appeal followed.2 We affirm.

Background. We summarize the factual background. Just after 2:00 p.m. on March 6, 2019, the Massachusetts State Police received a 911 call and heard a person screaming in the background. Two Wellesley police officers responded to the call and encountered the plaintiff, who was “was visibly upset and appeared to be having difficulty breathing.” One officer spoke with the plaintiff while the other spoke with the defendant and the couple's two children, ages six and three. The plaintiff stated that she had attempted to intervene in a physical confrontation between the defendant and the six year old when the defendant twisted her arm and pushed her onto the sofa. The defendant, who did not speak English, conveyed his version of events through translations provided by the six year old and the defendant's brother, whom an officer contacted by cell phone. The defendant acknowledged twisting the plaintiff's arm and pushing her onto the sofa, but explained that he did so because the plaintiff grabbed the defendant's shirt and reached for his neck. The defendant was advised of his rights under c. 209A but stated that he was not in fear of the plaintiff and did not want a restraining order against her. Later that day a judge allowed the plaintiff's written application for the 209A order.3

The following day the parties appeared before a different judge for a hearing on the plaintiff's request to extend the order. The plaintiff testified that she sought the 209A order because “[i]t's not the first time, many times that -- and the third time I called the Boston police officer and that was back in late 2015. And then we were here also, and that I just don't feel safe.” Through an interpreter, the defendant testified that:

“Yesterday we were fighting. He grab on -- she grab on to my collar. I was very scared. Because [eighteen] months before that, she has over [thirteen] times assaulted my face, my nose, my eyes, my mouth, as well as my neck. There are [eleven] pictures associated with those assaults. So that's why I subconsciously push her to the sofa. She used force to her child ․, to the point when he was bleeding and there are pictures associated with that.”

The judge admitted twenty-one photographs offered by the defendant and questioned him about the plaintiff's alleged abuse. In response, the defendant described a series of incidents he believed demonstrated the plaintiff's poor parenting. After the hearing the judge extended the 209A order for one year. Thereafter, the translator explained to the defendant that he could seek a 209A order protecting himself and the children from the plaintiff.

Seven months later, the defendant argued in his motion for reconsideration that the translator's poor performance had prevented him from “telling [his] side of the story,” and that the plaintiff had committed a fraud on the court by concealing her own history of abusing the defendant and children. The motion was supported by affidavits from the defendant, the defendant's brother, and the defendant's adult son from a prior relationship. In his affidavit, the defendant stated that “arguments between [the plaintiff] and I are all the result of [the plaintiff] using what I thought were ‘inappropriate’ parenting techniques.” These arguments always took place in front of the children. The defendant's adult son asserted that “the vast majority of these arguments started with [the defendant] offering advice or a suggestion of some sort to [the plaintiff] in regard to child-rearing practices.” The defendant's submission in support of reconsideration included thirty-two undated photographs of injuries he alleges were caused by the plaintiff.

Discussion. “Decisional law has developed several practical criteria for submission of a request for a second consideration.” Audubon Hill S. Condominium Ass'n v. Community Ass'n Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 470 (2012). The party seeking reconsideration “should specify (1) ‘changed circumstances’ such as (a) newly discovered evidence or information, or (b) a development of relevant law; or (2) a particular and demonstrable error in the original ruling or decision.” Id. We review a denial of reconsideration for an abuse of discretion. See id.

First, although the affidavits submitted by the defendant contained more detail about the plaintiff's alleged abuse of the defendant, they did not contain newly discovered evidence. The defendant testified at the extension hearing that “[the plaintiff] has over [thirteen] times assaulted my face, my nose, my eyes, my mouth, as well as my neck․ So that's why I subconsciously push her to the sofa.” Thus, the allegation of the plaintiff's history of abuse of the defendant was before the judge who issued the order. He was in the best position to assess the parties’ demeanor and the credibility of their testimony. See S.V. v. R.V., 94 Mass. App. Ct. 811, 813 (2019). Where the subject of the plaintiff's past abuse was before the judge who extended the order, the judge did not abuse his discretion in denying the motion to reconsider without a hearing.4

Nor do we see any abuse of discretion in the judge's rejection of the defendant's self-serving claim that he did not understand what was said at the extension hearing. Even assuming some flaw in the certified interpreter's translation of the testimony, the defendant has failed to specify what he misunderstood or how it would have made a difference. The transcript reveals that the defendant sufficiently understood the purpose of the hearing, and that he was able to communicate a defense to the plaintiff's allegation.

More fundamentally, the information submitted by the defendant in support of his motion to reconsider did not relate directly to the abuse on March 6, 2019. The question at the extension hearing was “whether the plaintiff ha[d] shown by a preponderance of the evidence that an extension of the order [was] necessary to protect her from the likelihood of ‘abuse.’ ” Iamele v. Asselin, 444 Mass. 734, 739 (2005). See M.G. v. G.A., 94 Mass. App. Ct. 139, 146 (2018) (focus of 209A proceeding is “plaintiff's need for protection”). “Abuse” is defined in the first instance as “attempting to cause or causing physical harm.” G. L. c. 209A, § 1 (a). “[T]he plaintiff will need to show a reasonable fear of imminent serious physical harm at the time that relief ․ is sought.” MacDonald v. Caruso, 467 Mass. 382, 386 (2014), quoting Iamele, supra at 735. Here, the defendant acknowledged that on March 6th he twisted the plaintiff's arm and pushed her onto the sofa. His challenge was to the plaintiff's testimony that she was in fear. However, “the judge had the benefit of evaluating the plaintiff's credibility through her testimony and demeanor, and was entitled to credit her testimony concerning her fear.” Smith v. Jones, 75 Mass. App. Ct. 540, 547 (2009) (Cypher, J., dissenting). In these circumstances, denial of the motion for reconsideration was not an abuse of discretion.

Order denying motion to reconsider affirmed.


2.   Although the defendant's brief also claims error in the extension order itself, that issue is not properly before us. The notice of appeal refers only to the order dated October 31, 2019, denying the motion for reconsideration. Where the notice of appeal does not identify the underlying extension order as required by Mass. R. A. P. 3 (c) (1), as amended, 481 Mass. 1604 (2019), and where the notice was not timely with respect to that decision, see Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019), we will not address an appeal of the extension order. See DeLucia v. Kfoury, 93 Mass. App. Ct. 166, 170 (2018) (“timely notice of appeal is a jurisdictional prerequisite to our authority to consider any matter on appeal”).

3.   Wellesley police sought a criminal complaint charging the defendant with assault and battery on a household or family member. The defendant applied for a private complaint against the plaintiff for assault and battery. Both applications were withdrawn at the show cause hearing by agreement of the parties.

4.   We have reviewed the transcript of the June 17, 2019, hearing on the application for a criminal complaint and see nothing that would require reconsideration of the extension of the abuse prevention order.

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