A.B. v. S.S. (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a District Court order denying her request to further extend and make permanent a G. L. c. 209A abuse prevention order against the defendant, her ex-husband. We vacate and remand.

Background. In December 2017, the plaintiff applied for and obtained an ex parte abuse prevention order against the defendant. The order was extended several times until May 11, 2022, when a judge of the District Court vacated the order after hearing. The plaintiff appealed, and this court reversed, reasoning that the judge “appear[ed] to have imposed on the plaintiff an incorrect burden to prove new episodes of abuse to establish a risk of further imminent physical harm.” Latoya L. v. Kai K., 104 Mass. App. Ct. 173, 179 (2024). We ordered entry of an extension of the order until such time as the court, on remand, scheduled an extension hearing. Id. The same judge thereafter held a new hearing, whereupon the abuse prevention order was further extended for six months. On December 11, 2024, the parties appeared for an extension hearing before the same judge, who heard representations of counsel and took the matter under advisement. That day, an order entered on the docket terminating the abuse prevention order.

Discussion. On appeal, the plaintiff argues that the judge abused his discretion by refusing to extend the 209A order without making findings of fact and by refusing to consider her request for a permanent order.

Whether seeking the issuance of an initial abuse prevention order or a later extension of that order, the plaintiff bears the burden of establishing facts justifying the need for the order. Iamele v. Asselin, 444 Mass. 734, 736 (2005). See Frizado v. Frizado, 420 Mass. 592, 596 (1995). The plaintiff must meet that burden by a preponderance of the evidence. Id. at 597.

Where the initial order was issued on the basis that the defendant inflicted physical or sexual abuse on the plaintiff in the past -- as it was here -- the judge must determine whether there is a continued need for the order to address damage from the past abuse. Latoya L., 104 Mass. App. Ct. at 177-178. A judge is to examine “the totality of the circumstances of the parties’ relationship” at the time of the extension request, viewed in the light of the initial order. Iamele, 444 Mass. at 740.

We review a ruling concerning the extension of a 209A order “for an abuse of discretion or other error of law” (citation omitted). Latoya L., 104 Mass. App. Ct. at 177. A judge abuses discretion where there is a clear error of judgment in weighing the relevant factors such that the decision falls outside the range of reasonable alternatives. See Constance C. v. Raymond R., 101 Mass. App. Ct. 390, 394 (2022).

In this case, we are hindered in our review by the combination of (1) the parties proceeding by representations of counsel and (2) the absence of findings. Although we have previously recognized in these cases that parties sometimes choose to proceed upon representations rather than testimony, see Vittone v. Clairmont, 64 Mass. App. Ct. 479, 481 n.4 (2005), it is well established that representations of counsel are not evidence. See Commonwealth v. Rzepphiewski, 431 Mass. 48, 50 n.5 (2000) (unsworn representation by counsel to appellate court not evidence); Danny D. v. Eli E., 102 Mass. App. Ct. 901, 902 (2023) (“arguments of counsel are not evidence”).

Although representations may well have their place as to uncontested matters, here the issue was the plaintiff's continuing need for the order of protection, a matter that was vigorously contested. On the one hand, the plaintiff alleged that the past abuse was so severe that she continued to suffer years after the fact and a permanent order was needed to address it. On the other hand, the defendant alleged that the plaintiff's behavior of what he described as inserting herself into his life and using the order as a weapon to harass him demonstrated that she had no continuing need for an order of protection. The proceeding called for an evidentiary hearing, where the judge would be able to hear from the parties and observe their demeanor to make credibility determinations. Cf. Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 664 (2020) (appellate court accords “utmost deference” to credibility determinations of judge who heard testimony of parties and observed demeanor).

Against this backdrop, the judge terminated the order without findings. Ordinarily, subsidiary findings are not necessary in these proceedings because the ultimate ruling carries with it the implication that the judge credited the evidence consistent with the ruling. See Nelson N. v. Patsy P., 98 Mass. App. Ct. 78, 81 n.7 (2020), and cases cited. But here, there was no apparent basis for the judge to credit one version of events over the other, as he had before him mere allegations of the parties. Without findings based on evidence, we are unable to properly review the issues on appeal.

We therefore vacate the order dated December 11, 2024, and remand the case to the District Court for an evidentiary hearing. Because the hearing must be held anew, and given the history of this case, we think it best that the extension hearing be held before another judge.

Conclusion. The order dated December 11, 2024, is vacated, and the case is remanded for a two-party hearing on the extension of the 209A order, to be scheduled within thirty days of the issuance of this memorandum and order.

So ordered.