A.M. v. C.J.M. (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal concerns the extension of an abuse prevention order originally issued in July 2021 in favor of the plaintiff, A.M., against the defendant, C.J.M., pursuant to G. L. c. 209A. The defendant appeals from the order dated August 15, 2025, that extended the order for five years. We affirm.

The defendant argues that he did not have “reasonable notice of the 209A extension” such that it violated his due process rights, and that the judge erred by denying the defendant a meaningful opportunity to be heard and to impeach the plaintiff. We take each issue in turn.

First, the defendant contends that he did not have adequate notice of the hearing or the plaintiff's intent to seek an extension of the order, and that the lack of notice denied the defendant an opportunity to prepare for the hearing. We are not persuaded. The plaintiff was first granted an ex parte restraining order against the defendant in July 2021. See G. L. c. 209A, § 4. Following a two-party hearing on August 18, 2021, the order was extended until August 17, 2022. See G. L. c. 209A, § 3. The order was then extended for another year to August 16, 2023. The defendant appeared at the 2023 hearing at which the August 15, 2025 date was set. Therefore, the defendant had two years’ notice of the August 2025 hearing date.

The defendant's argument that he was prejudiced because he was not served with the plaintiff's motion, requesting an extension that would issue either a “multi-year” or permanent order, and the plaintiff's supplemental affidavit prior to the hearing date is equally unavailing. First, the transcript does not support the defendant's argument that he timely or properly sought a continuance. When the case was called at 9:33 A.M., both parties and counsel were present. The defendant neither informed the judge that he had just been served with the plaintiff's pleadings nor requested a continuance or additional time to review them. He also failed to object or ask for additional time when the judge paused the proceedings to review the file. Instead, the defendant cross-examined the plaintiff and waited until both parties rested before first raising any concern about notice during his closing argument. Moreover, during the closing argument, the defendant did not suggest in any specific way how he was prejudiced by the filing of the plaintiff's motion and affidavit that day. Rather, he argued generally that he was “not able to prepare for this case because [he] was not even noticed of this extension until this morning,” and that he was “prejudiced by not having sufficient notice to be able to respond to all the allegations made against him.” As we noted above, the defendant had two years to anticipate and prepare for the hearing.

Even if we were to construe the defendant's argument during closing as a request for a continuance because he was not served in advance with the motion and affidavit, there was no error. After an ex parte order is issued, “[t]here is no statutory or constitutional requirement that a G. L. c. 209A complainant's affidavit be served with the order.” Flynn v. Warner, 421 Mass. 1002, 1002 (1995). And, at a hearing after notice, “[f]airness requires ․ that the defendant ․ know what has been alleged.” Guidelines for Judicial Practice: Abuse Prevention Proceedings § 5.01 commentary (Oct. 2021).¹ Moreover, “the decision on whether to continue any judicial proceeding is a matter entrusted to the sound discretion of the judge, and the judge's decision will be upheld absent an abuse of that discretion.” Adoption of Gillian, 63 Mass. App. Ct. 398, 409-410 (2005). Only where we find that “the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives,” do we reverse the decision to deny the defendant's request for a continuance. Vazquez Diaz v. Commonwealth, 487 Mass. 336, 345 (2021), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). “The person seeking a continuance ․ ‘bears the burden of establishing its need.’ ” Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 391 (2013), quoting Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 97 (2d Cir. 2012).

Here, the defendant neither specified what additional time to prepare would achieve ² nor addressed his failure to respond to the plaintiff's efforts to provide him with the pleadings in the days prior to the hearing. The judge had before him the plaintiff's certificate of service, which certified that her counsel had, on August 14, 2025, “first class mailed” the pleadings to the defendant at his last known address and “left him a voice and text message on his last known cell phone” in an effort to provide copies of the pleadings in advance of the hearing. In addition, during her closing argument, the plaintiff's counsel informed the judge that she had telephoned and text messaged the defendant seeking to provide him with the pleadings and had not received any response. It was not an abuse of discretion for the judge to credit the certificate of service and the representations of counsel.

The transcript also shows that the judge considered the unique circumstances of the proceedings and the parties, and was satisfied that the defendant had had an opportunity to learn and respond to the plaintiff's allegations. The judge stated to the defendant and his counsel, “you are well aware of the issues,” and “you've made an argument and are certainly familiar with the case.” Indeed, the judge remarked, “this is something that ․ [has been] looming for two years.” Accordingly, there was no error.

Secondly, the defendant argues that he was not afforded a sufficient opportunity to be heard and cross-examine the plaintiff about the medical and psychological treatment she received because of the abuse perpetrated by the defendant. The transcript also belies this argument. While “[a] defendant has a general right to cross-examine witnesses against him[,] ․ [t]here may be circumstances in which ․ a judge may limit cross-examination for good cause in an exercise of discretion.” Frizado v. Frizado, 420 Mass. 592, 597 (1995). Here, during his cross-examination of the plaintiff, the defendant asked two questions about the plaintiff's medical treatment -- one asking whether she could produce her medical records and one asking whether she could “provide any evidence” of her attendance at support groups or use of “victim hotlines.” The plaintiff objected to both questions on the ground that the records were “protected” and “privileged.” The judge sustained the first objection and, after the second objection, stated,

“I don't think she's required to produce any evidence of that. She's testified that she did seek out some type of counseling as a result of the abuse, and I think we just leave it at that. She is not under any obligation to produce anything or show any records. And to the extent that they're privileged and protected by privilege, then that's true. But I don't require her to produce the records regardless.”

The judge's statements were not a limitation on the defendant's ability to cross-examine the plaintiff; rather, the judge permissibly clarified the evidentiary rules governing privileged medical records. Moreover, after the judge's statements, the defendant's counsel stated, “Okay, Your Honor,” and did not ask any more questions about the plaintiff's medical or psychological treatment.³

Even if we were to construe the defendant's questions to the plaintiff as a request for discovery of the plaintiff's medical records, the judge acted within his discretion in stating that he would not require the records’ production. “Discovery orders are within the court's discretion and should be issued only after a hearing and only upon a showing that such discovery is necessary to provide specific information essential to the adjudication of the case or the issuance of particular abuse prevention orders.” Guidelines for Judicial Practice: Abuse Prevention Proceedings § 1:03 (Oct. 2021).

The defendant also argues that he should have been permitted to impeach the plaintiff's claims of physical abuse because she had previously testified that her need for the order was because of stalking by the defendant, not physical abuse. We are unable to assess this argument because the record does not include either the transcript of the first two-party hearing in August, 2021, or the affidavit filed by the plaintiff in support of her application for the order in July, 2021. See Everett v. 357 Corp., 453 Mass. 585, 604 n.26 (2009). (“It is [appellant's] obligation to include in the record appendix any document on which he relies”); Arch Med. Assocs. v. Bartlett Health Enters., Inc., 32 Mass. App. Ct. 404, 406 (1992) (“The burden is on the appellant in the first instance to furnish a record that supports his claims on appeal”).⁴

The defendant also contends that the judge erred by preventing impeachment of the plaintiff about her “physical, mental and emotional condition,” arguing that the plaintiff placed her conditions at issue “as elements of her claim.” We are not persuaded. As noted above, the judge did not prevent any cross-examination questions but merely informed the defendant that the plaintiff would not be required to produce medical records. The defendant was free to challenge the plaintiff's credibility through other permissible questions, but did not do so.⁵

Order, entered August 15, 2025, extending G. L. c. 209A order affirmed.

FOOTNOTES

1.   The most recent iteration of these guidelines, released in October 2025, states the same. See Guidelines for Judicial Practice: Abuse Prevention Proceedings § 5.01 (Oct. 2025).Because the events at issue occurred prior to these revisions, we cite to the guidelines in effect at the time of the lower court matter.

2.   In his brief, for the first time, the defendant argues that “[t]here are witnesses [who] could testify in defense of the defendant.”

3.   We note that the defendant did not object to the judge's statements and did not preserve the issue. Although we would be warranted in deeming this argument waived, see Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006), we exercise our discretion to address it.

4.   We note that a panel of this court affirmed the 2023 extension order. That decision explicitly stated that the plaintiff's request for the initial order in 2021 included an affidavit detailing several instances of physical abuse by the defendant. See A.M. v. C.J.M., 104 Mass. App. Ct. 1115 (2024).

5.   “To the extent that we have not specifically addressed other points made ․ in [the defendant's] brief, they ‘have not been overlooked. We find nothing in them that requires discussion.’ ” Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).