K.E. v. T.E. (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, T.E., appeals from the seven-year extension of an abuse prevention order pursuant to G. L. c. 209A. We affirm.

Background. We summarize the relevant facts as follows. The parties married in 2006 and had a child in 2008. The defendant moved out of the home in 2010 and filed for divorce in 2011. K.E., the plaintiff, alleged abuse by the defendant, and the Probate and Family Court granted an ex parte 209A protective order for the plaintiff and their child in September 2011. A month later an evidentiary hearing was held, after which the order was not extended and subsequently expired. The next day, the plaintiff filed a new complaint for a 209A order in the Woburn Division of the District Court Department, which was granted and later extended several times.

After a divorce trial that concluded in June 2014, a Probate and Family Court judge found that the plaintiff's allegations of abuse lacked credibility and modified the order providing the defendant more access to the child.

Meanwhile, three judges of the District Court extended the order in 2015, 2016, and 2017, which the defendant did not appeal. At a February 2020 extension hearing, a fourth judge found that the plaintiff, by her words and fearful demeanor, was suffering from the effects of past abuse that the defendant had perpetrated on her and their children.¹ The judge extended the order until 2027, when the parties' child turns eighteen. This appeal followed.

Discussion. The defendant contends that the fourth District Court judge abused her discretion in granting the extension because the plaintiff did not allege any new incidents of abuse and in 2014 the Probate and Family Court judge found, in connection with the parties' divorce proceedings, that the plaintiff's claims of abuse were not credible, and that no serious incident of abuse had occurred.

“The inquiry at an extension hearing is whether the plaintiff has shown by a preponderance of the evidence that an extension of the order is necessary to protect her from the likelihood of 'abuse' as defined in G. L. c. 209A, § 1.” Iamele v. Asselin, 444 Mass. 734, 739 (2005). Usually, a plaintiff shows entitlement to an abuse prevention order by showing “a reasonable fear of imminent serious physical harm.” S.V. v. R.V., 94 Mass. App. Ct. 811, 813 (2019), quoting MacDonald v. Caruso, 467 Mass. 382, 386 (2014). Where the plaintiff has “already been subject to physical harm,” however, an extension is warranted if “there is a continued need for the order because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent.” Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014).

Although the basis for the initial order is relevant to whether a restraining order should be extended, the defendant is not free to challenge the evidence supporting the initial order in an extension proceeding such as the one at issue here. As the Supreme Judicial Court said in Iamele, 444 Mass. at 740: “The judge is to consider the basis for the initial order in evaluating the risk of future abuse should the existing order expire [but] [t]his does not mean that the restrained party may challenge the evidence underlying the initial order.” We review the issuance of an extension order “for an abuse of discretion or other error of law.” G.B. v. C.A., 94 Mass. App. Ct. 389, 393 (2018), quoting E.C.O. v. Compton, 464 Mass. 558, 562 (2013). We discern neither.

Here, the fourth District Court judge determined that the plaintiff credibly demonstrated a “rational fear” and was suffering from abuse the defendant perpetrated on her and their children. At the hearing, the plaintiff testified that “I just -- I'm very afraid of him” and that she felt that he might hurt her given that they were still involved in litigation and seeing each other in court. The judge heard testimony about instances of past abuse, which involved the defendant kicking her and flipping a table on top of her while she was pregnant, as well as two incidents where he was arrested for assaulting her son. The hearing judge was able to evaluate the parties' demeanor during direct and cross-examination and was in the best position to assess their credibility. See S.V., 94 Mass. App. Ct. at 813. The judge observed that the plaintiff “looked fearful. Her voice seemed shaky ․ she did not in any way hyperbolize.” Her testimony about her fear and ongoing suffering from past abuse, which the judge credited, was sufficient to justify the continuance of the order.

Though the defendant argues that the judge should have credited his testimony and discredited the plaintiff's statements, credibility determinations are “quintessentially the domain of the trial judge.” Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995). It was up to the judge to determine what testimony to credit and “[i]t is not our role to interpret the evidence differently from the judge.” Cerutti-O'Brien v. Cerutti-O'Brien, 77 Mass. App. Ct. 166, 169 n.3 (2010). Rather, we accord the “utmost deference” to the credibility determinations made by the judge who “heard the testimony of the parties ․ [and] observed their demeanor” (citation omitted). Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 664 (2020). The defendant's argument that the plaintiff provided no corroborating evidence to support her claim that she was still suffering the effects of past abuse misses the mark as testimony alone is sufficient for persons seeking a 209A order to meet their burden of proof. See Commonwealth v. Santos, 100 Mass. App. Ct. 1, 3 (2021) (rejecting “contention that corroborative, extrinsic, or forensic evidence, or expert or third-party witness testimony, is required to support a conviction of rape or sexual assault where the victim testified as a witness at the trial”).

To the extent the defendant argues that a judge of the Probate and Family Court had found after a divorce trial that some of the same allegations by the plaintiff lacked credibility, he seems to be arguing that issue preclusion applies as to particular incidents without using that terminology or attempting to satisfy the standard for its application. Even if he did properly raise the subject now, as the defendant did not argue issue preclusion to the judge before she extended the order, it is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) (“An issue not raised or argued below may not be argued for the first time on appeal” [citation omitted]).² The case Smith v. Joyce, 421 Mass. 520, 523-524 (1995), also is not helpful to the defendant as the order of the District Court does not conflict with any custody or support decision of the Probate and Family Court.³

Order dated February 6, 2020, extending G. L. c. 209A order affirmed.

FOOTNOTES

1.   Both the plaintiff and the defendant had children from previous relationships. In addition to alleged abuse by the defendant against the plaintiff, the defendant also had two separate altercations with the plaintiff's eldest son in 2009 and 2010. Charges were brought against the defendant, and were eventually continued without a finding, and the defendant was sentenced to probation.

2.   The defendant did file a motion to reconsider under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), arguing that specific findings of the Probate and Family Court conflicted with the District Court's extension. However, the defendant did not appeal the court's order denying that motion and it is not before us. See Robinson v. Boston, 71 Mass. App. Ct. 765, 771 (2008) (order on motion to reconsideration not properly before court when it is not included in earlier filed notice of appeal and notice of appeal was not filed as to that order). We also note that at least the Walgreens encounter was not before the Probate and Family Court judge because it happened after that decision was rendered. See G.B. v. C.A., 94 Mass. App. Ct. 389, 397-398 (2018) (collateral estoppel not available in c. 209A case where facts were different).

3.   We need not act on the plaintiff's motion to strike portions of the record appendix, as we have not relied on any of the disputed materials in deciding the case. Nor do we need to rule on any remaining arguments from her motion to dismiss this appeal, as she has prevailed on appeal.