Background: Claimant filed complaints for protection
seeking abuse prevention orders against
her fiancé and his 20 year old son.
The Framingham Division of the District
Court Department, Middlesex County,
Paul F. Healy, Jr., and
Douglas W. Stoddart, JJ., granted
and subsequently continued ex parte
orders directing fiancé to vacate
and remain away from home, which was
involved in ownership dispute between
parties.
Holdings: The
Appeals Court,
Grasso, J., held that:
5(1)
sufficient basis existed for trial court's
issuance of ex parte orders against
claimant's fiancé and his 20 year old
son, but
6(2)
trial judge, absent proof of abuse,
lacked authority to continue ex parte
order directing claimant's fiancé to
vacate and remain away from home
Affirmed in part and vacated in part.
West
Headnotes
[1] Breach of the Peace 62
16
62 Breach of the Peace
62k15
Security or Order to Keep Peace or
Protect Family
62k16
k. Nature of Remedy.
Most Cited Cases
Abuse prevention statutes provides a
statutory mechanism by which victims
of family or household abuse can enlist
the aid of state to prevent further
abuse. M.G.L.A.
c. 209A, § 1 et seq.
[2] Breach of the Peace
62 16
62 Breach of the Peace
62k15
Security or Order to Keep Peace or
Protect Family
62k16
k. Nature of Remedy.
Most Cited Cases
Abuse prevention statutes were enacted
to address the problem of domestic violence
through the provision of judicial remedies.
M.G.L.A.
c. 209A, § 1 et seq.
[3] Breach of the Peace
62 16
62 Breach of the Peace
62k15
Security or Order to Keep Peace or
Protect Family
62k16
k. Nature of Remedy.
Most Cited Cases
Abuse prevention
statutes provide a potent arsenal
of remedies that requires great sensitivity
for the suffering and, sometimes,
mortal danger that flow from domestic
violence, as well as alertness against
allowing the process to be used abusively
by litigants for purposes of harassment.
M.G.L.A.
c. 209A, § 1 et seq.
[4] Breach of the Peace 62
17
62 Breach of the Peace
62k15
Security or Order to Keep Peace or
Protect Family
62k17
k. Grounds for Requiring.
Most Cited Cases
Under provision of abuse prevention
statute, a person suffering from abuse
from an adult or minor family or household
member may obtain a protective order
against a defendant who has perpetrated
such abuse. M.G.L.A.
c. 209A, § 3.
[5] Breach of the Peace 62
20
62 Breach of the Peace
62k15
Security or Order to Keep Peace or
Protect Family
62k20
k. Application and Proceedings Thereon.
Most Cited Cases
Sufficient basis
existed for trial judge's issuance
of ex parte orders against claimant's
fiancé and his 20-year-old son, directing
them to refrain from abuse, not to
contact claimant or her 14-year-old
daughter, and to leave and remain
away from home, which was involved
in ownership dispute between parties;
besides satisfying jurisdictional
“relationship” requirement, claimant's
affidavits established sufficient
factual basis for judge's conclusion
that fiancé and his son had caused
claimant physical harm or placed her
in fear of imminent serious physical
harm, thereby warranting ex parte
relief. M.G.L.A.
c. 209A, §§ 1,
3.
[6] Breach of the Peace 62
19
62 Breach of the Peace
62k15
Security or Order to Keep Peace or
Protect Family
62k19
k. Authority to Require or Take.
Most Cited Cases
Trial judge, absent
proof of abuse, lacked authority to
continue ex parte order directing
claimant's fiancé to vacate and remain
away from home, which was involved
in ownership dispute between parties;
although court expressed concerns
that violence could occur if both
parties remained in same household,
judge did not believe that fiancé
had physically abused claimant or
posed threat of imminent serious physical
harm to her, and, having so concluded,
judge lacked power to impose protective
order as prudential measure. M.G.L.A.
c. 209A, §§ 1,
3.
*724
Steven S. Epstein, Georgetown,
for the defendants.
Dana Alan Curhan, Boston,
for the plaintiff.
Present: GRASSO, DREBEN, &
BERRY, JJ.
*725
GRASSO, J.
In this appeal, we
consider the constraints on a judge's
power to award relief under G.L. c.
209A. We conclude that when, at a
contested hearing, a plaintiff fails
to prove that “abuse” has occurred,
a judge may not continue an ex parte
order that directs the defendant to
vacate and remain away from the household
because of subjective concerns that
violence may occur if both remain
in the same household. FN2
FN2. As discussed infra,
the ex parte orders were proper.
1. The ex parte
orders. On Friday, August
20, 2004, Christine Corrado filed
complaints for protection under G.L.
c. 209A, with accompanying affidavits,
that sought abuse prevention orders
against her fiancé, Hunt R. Hedrick
Jr. (Randy), and his twenty year old
son, Hunt R. Hedrick III (Hunt III).
In her affidavit against
Randy, Corrado alleged that he hit
her on two occasions and threw her
into a refrigerator; told her
he would bury her in the backyard
if she left him; had a large
collection of guns in the house; was
a heavy marijuana user; and
was under substantial stress because
of the failing health of his parents,
who lived in Virginia. Corrado
also related that she and Randy were
involved in a dispute over ownership
of the home at 12 DiCarlo Road, Hopkinton.
The home was in Randy's
name, but she had invested substantial
sums. Corrado had been
staying at her parents' home in Framingham
in order to avoid Randy and Hunt III
who were returning from Virginia to
attend Hunt III's court date. Randy
told her not to return to DiCarlo
Road and to send someone to retrieve
her belongings.
As to Hunt III,
Corrado's affidavits alleged that
he was a drug dealer and user who
was on probation; maintained
drug paraphernalia and caused other
problems in the home; had threatened
to kill her and her daughter in the
recent past; and had cut his
father with a knife. Corrado
also described his assaultive behavior,
his use of knives with peers, his
knowledge of his father's guns, and
her fear of living with him during
Randy's frequent travels to Virginia.
After an ex parte
hearing, a District Court judge granted
restraining orders that directed Randy
and Hunt III, respectively to refrain
from abuse; not to contact Corrado
or her fourteen year old daughter
Lalia and to remain at least fifty
yards away from them; to surrender
all firearms; and, significant
to this appeal, to leave and remain
away from the residence at 12 DiCarlo
Road.
2. The evidentiary
hearing. The matters first
came on for hearing on October 5,
2004. Randy appeared with
counsel who moved to dismiss the orders
nunc pro tunc to August 20. A
different judge heard testimony from
Corrado, Lalia, and Randy, and allowed
Randy's counsel limited cross-examination.
Various e-mails and notes
detailing telephone calls between
Corrado and Randy during the
months of May through September were
admitted in evidence as exhibits.
Corrado testified
that she and Randy had “very large
financial issue[s]” regarding the
property at 12 DiCarlo Road. They
had communicated by phone while Randy
was en route from Virginia. Randy
told her that she was not to come
back to the house and that he planned
to change the locks on the door. Corrado
had no objection to telephone contact
to save on attorneys' fees, but she
objected to Hunt III remaining in
the home. In the past,
she had overheard him tell his father
that he would kill her.
*726
Lalia testified that Randy had used
crude words and swears toward Corrado,
but “[n]ot like I'll kill you, ...
just ... crude words.”
Randy denied ever threatening Corrado
or being physically abusive to her.
He confirmed that he and
Corrado were locked in a dispute over
her financial interest in the property
and that in July he told her that she
had thirty days to find a place to live
and to vacate the property. They
had scheduled a mediation session for
August 19 to resolve their financial
dispute, but Corrado had sabotaged the
mediation by misleading him as to its
scheduled time and place. On
the advice of his lawyer, Randy changed
the locks to the property on August
19 and contacted the Hopkinton police
to have a “no trespass” order issued
against Corrado. On August
20, he and Corrado discussed settlement,
but she rejected his offer to pay her
$146,500 for her interest or to let
her buy his interest for $50,000. Her
response was, “I'll see you in court
and I'm going to make your life miserable.”
Corrado then obtained the
restraining order against him.
Randy also testified that Corrado had
a volatile temper. She would
yell, scream, stomp around, slam doors,
and throw things, including liquids
in his face. He stated that
the incident involving the refrigerator,
referenced in Corrado's affidavit, had
actually occurred a year prior. According
to his testimony, in the course of an
argument Corrado threw a beer bottle
at him. He laughed at her,
causing her to become even more irritated.
As he went to get a towel
to clean up the beer, Corrado hit him
in the testicles with the beer bottle.
When he “instinctively impulsively”
pushed her away from him, she “stumbled
and fell into the refrigerator.”
After considering the testimony, the
judge told Corrado that he found Randy's
version of events more credible than
hers, and that “[l]egally I don't feel
that you have proven your case.”
FN3 He told the parties that
he intended to vacate the orders and
sought their input for resolving the
stalemate over the right to immediate
occupancy of the property. When
the parties failed to reach a resolution,
the judge stated that he would vacate
all protective orders except those that
directed Randy (and Hunt III) to remain
away from the premises and authorized
them to retrieve their personal belongings
in the company of the police. The
judge expressed his intention to leave
those orders in place for a week to
allow the parties to resolve the dispute.
FN3. The judge went on
to say, “Legally I want to vacate
the order. Practically,
I'm going to give you some time to
do something legally to decide who
can stay (inaudible) night. I
don't want to use this process to
give one or the other person occupancy.
Now, the problem is, if
I do nothing, it could end up being
a lawless, chaotic circumstance where
both sides are sitting in the house
refusing to leave and that could be
explosive. So I'm really
in a lot of trouble here, unless I
extend this for a short period of
time.”
Before continuing the hearing, the judge
reiterated to Corrado that she had not
proved that Randy had physically abused
her or threatened her with imminent
serious physical harm. He
told her that he believed that she had
come to court solely to gain leverage
in their ongoing property dispute. Nevertheless,
the judge stated that he would extend
the order that Randy and Hunt III remain
away from the property for a week because
of his concerns that a vacuum regarding
the right to use and occupy the premises
could lead to an explosive situation
should both sides sit in the house and
refuse to leave.
On October 12, Corrado appeared with
her attorney. Counsel appeared
for Randy*727 and Hunt III, who
were back in Virginia. The
attorneys reported that the parties
had made no headway regarding the property
dispute. With respect to
Corrado's allegations against Randy,
the judge restated his prior determination
that Corrado had failed to meet her
burden of proof against Randy and had
sought a restraining order not out of
fear for her safety but as a leverage
in the property dispute. Although
the judge recognized that maintaining
the order to vacate in place was
of dubious legal validity, he again
extended the order directing Randy to
vacate and remain away from the property
until October 20 in the hope that by
that date the parties could reach an
amicable civil settlement. With
respect to Corrado's allegations against
Hunt III, the judge reconsidered his
previous determination that Hunt III
did not pose a danger. The
judge reinstated against Hunt III the
previously vacated orders that Hunt
III refrain from abusing and have no
contact with Corrado.
On October 20, the judge learned that
the property dispute remained unresolved.
At a loss for a practical
solution, the judge again extended the
order directing Randy to remain away
from the premises until January 4, 2005.
FN4 The judge acknowledged
candidly that the order “is as marginal
an order as I have ever written. And
the only reason I would extend it is
I am scared to death of these two people
sitting in the same house. It
is untenable, and I don't know of any
legal means other than extending this
order.”
FN5 The order has since expired.FN6
FN4. The judge also stated:
“The biggest fear of any Judge
is that he vacates an order and physical
violence occurs after the vacature
of that order.... [M]y nightmare
is that I vacate the order and that
[Randy] returns to the house. Mr[s].
Corrado stays in the house. They
could stay there for days or weeks.
It's obvious they can't
stand each other. It's
obvious that the level of the rhetoric
to one another is at a heightened
state.
“Although there is no belief on my
part that other than being inside
the house, that [Randy] would do any
harm to her. I just can't
put them in the same room for extended
days or weeks.”
FN5. At the prodding of
counsel for Randy, the judge included
in the order a provision that Corrado
convert all utilities to her name,
immediately assume certain mortgage
and tax obligations, and provide proof
of payment to opposing counsel.
FN6. The matter is not
moot. See
Smith v. Joyce, 421 Mass. 520, 521,
658 N.E.2d 677 (1995) (statute
requires appropriate law enforcement
agency to destroy record of vacated
orders); Wooldridge
v. Hickey, 45 Mass.App.Ct. 637, 638,
700 N.E.2d 296 (1998) (defendant
has surviving interest in establishing
order not lawfully issued to remove
stigma from his name and record and
collateral use in future proceedings);
Jones
v. Gallagher, 54 Mass.App.Ct. 883,
887, 768 N.E.2d 1088 (2002);
Dollan
v. Dollan, 55 Mass.App.Ct. 905, 905
n. 2, 771 N.E.2d 825 (2002).
[1][2]
3. Discussion. General Laws c. 209A
“provides a statutory mechanism by
which victims of family or household
abuse can enlist the aid of the State
to prevent further abuse.” Commonwealth
v. Gordon, 407 Mass. 340, 344, 553
N.E.2d 915 (1990). The
statute was enacted “to address the
problem of domestic violence through
the provision of judicial remedies.”
Turner
v. Lewis, 434 Mass. 331, 332,
749 N.E.2d 122 (2001).
“The fundamental purpose of
proceedings under c. 209A is to adjudicate
the need for protection from abuse
and, if that need is found to exist,
to provide protective court orders.”
Guidelines for Judicial
Practice: Abuse Prevention Proceedings
§ 1:01 (Dec.2000).
[3] The statute provides
a potent arsenal of remedies that
“requires great sensitivity for the
suffering and, sometimes, mortal danger
that flow from domestic violence,”*728
Szymkowski
v. Szymkowski, 57 Mass.App.Ct. 284,
286, 782 N.E.2d 1085 (2003),
as well as alertness “against allowing
the process to be used, as it sometimes
is, ‘abusively by litigants for purposes
of ... harassment.’ ” Id.
at 287, 782 N.E.2d 1085,
quoting from
Jones v. Gallagher, 54 Mass.App.Ct.
883, 887 n. 4, 768 N.E.2d 1088 (2002).
The statute is not a panacea
for all social ills, nor a means of
circumventing other available judicial
processes for resolving disputes.
See
G.L. c. 209A, § 3,
as amended through St.1990, c. 403,
§ 3 (“No order under this chapter
shall in any manner affect title to
real property”).
[4]
Section 3 of c. 209A, as
amended through St.1990, c. 403, § 3,
provides that “ ‘[a] person suffering
from abuse from an adult or minor
family or household member may’ obtain
a protective order against a defendant
who has perpetrated such abuse.” Vittone
v. Clairmont, 64 Mass.App.Ct. 479,
484, 834 N.E.2d 258 (2005).
As pertinent to this action,
§ 1 of c. 209A, as
amended through St.1990, c. 403, § 2,
defines “abuse” as:
“[T]he
occurrence of one or more of the following
acts between family or household members:
“(a)
attempting to cause or causing physical
harm;
“(b)
placing another in fear of imminent
serious physical harm.”
FN7
FN7. Corrado made no allegation
that either defendant engaged in “abuse”
by “causing [her] to engage involuntarily
in sexual relations by force, threat
or duress.” G.L.
c. 209A, § 1, as amended
through St.1990, c. 403, § 2.
As a predicate
to the issuance of a protective order,
the statute requires a determination
that the defendant has perpetrated
“abuse” within the meaning of the
statute. Put differently,
a sine qua non for the issuance of
a statutory protective order is a
finding of abuse. Upon
a finding of abuse, a court may issue
protective orders. See
G.L. c. 209A, § 3.
Absent such a finding, the remedies
of
§ 3 are not available.
[5] We now turn to the
ex parte orders of August 20 and the
orders that followed the hearing of
October 5. We conclude that the judge
did not err in entering the August
20 ex parte orders against Randy and
Hunt III (or in extending these orders
pending full hearing). Notwithstanding
the defendants' arguments to the contrary,
it is beyond dispute that the ex parte
orders entered on sufficient basis.
Corrado, Randy, and Hunt
III fell within the ambit of “household
members” as that term is defined in
the statute, and the court had jurisdiction
to entertain Corrado's ex parte complaint
against each of them. See
G.L. c. 209A, § 1;
Sorgman
v. Sorgman, 49 Mass.App.Ct. 416, 417,
729 N.E.2d 1141 (2000).
Corrado and Randy were
in a substantive dating relationship
and resided together at 12 DiCarlo
Road. Hunt III also resided at that
location. Besides satisfying
the jurisdictional “relationship”
requirement, Corrado's affidavits
established a sufficient factual basis
for the judge's conclusion that Randy
and Hunt III, respectively, had caused
her physical harm or placed her in
fear of imminent serious physical
harm, thereby warranting ex parte
relief.
[6] The orders that followed
the evidentiary hearing of October
5 stand on different footing. That
hearing was a civil proceeding at
which Corrado had the burden of demonstrating
by a preponderance of the evidence
that each defendant's actions either
caused her physical harm, or placed
her in fear of imminent serious physical
harm. See
Frizado v. Frizado, 420 Mass. 592,
597, 651 N.E.2d 1206 (1995);
*729 Jones
v. Gallagher, 54 Mass.App.Ct. at
890, 768 N.E.2d 1088; Keene
v. Gangi, 60 Mass.App.Ct. 667, 669-670,
805 N.E.2d 77 (2004); Vittone
v. Clairmont, 64 Mass.App.Ct. at 481
n. 4, 834 N.E.2d 258. The
judge's findings manifest that Corrado
failed in her burden of proving that
Randy had perpetrated “abuse” on her.
The judge expressed
unambiguously his disbelief of Corrado's
allegations that Randy had caused
her physical harm or placed her in
fear of imminent serious physical
harm. The judge specifically
concluded that Randy's version was
more credible than Corrado's and that
she had come to court seeking
c. 209A protection
as a wedge in her property dispute
with Randy. FN8
See
Jones v. Gallagher, 54 Mass.App.Ct.
at 887 n. 4, 768 N.E.2d 1088,
and cases cited therein (recognizing
that litigants may abuse the
c. 209A process for purposes
of harassment); Szymkowski
v. Szymkowski, 57 Mass.App.Ct. at
287, 782 N.E.2d 1085. Findings
that are based on credibility assessments
are uniquely the province of the trial
judge, and we will not disturb them
on appeal. See
Commonwealth v. Boucher, 438 Mass.
274, 275-276, 780 N.E.2d 47 (2002);
C.O.
v. M.M., 442 Mass. 648, 655-656, 815
N.E.2d 582 (2004).
FN8. We find no abuse of
discretion or other error of law and
leave undisturbed the judge's determination
on October 12, upon reconsideration,
that Hunt III posed a threat of imminent
serious physical harm and that there
existed a basis for issuing protective
orders against him.
Once the judge
concluded that Corrado had failed
in her burden of proof, he erred in
extending the order that directed
Randy to vacate and remain away from
12 DiCarlo Road. Before the available
remedies for dealing with domestic
abuse may be invoked, “abuse” must
be proved. Indeed, to
remedy the problems of domestic abuse,
the Legislature has seen fit to permit
the District Court, and other courts
that are not courts of general equity
jurisdiction, the power to issue equitable
orders in instances where abuse is
found. See
Zullo v. Goguen, 423 Mass. 679, 682,
672 N.E.2d 502 (1996) (“orders
made under
c. 209A are equitable in
nature”). Absent proof
of abuse, the judge lacked authority
to impose the equitable remedies available
under the statute.
To his credit, the
judge did not rubber stamp Corrado's
complaint. As the law
requires, he considered all the evidence
conscientiously, made a discerning
appraisal, and concluded that she
had failed in her burden of proof.
See
Frizado v. Frizado, 420 Mass. at 597,
651 N.E.2d 1206. While
the judge recognized that Corrado's
failure to prove abuse imposed constraints
on the remedial powers available,
he feared that removing the order
that directed Randy to remain away
from the residence would create a
vacuum that left each party free to
return to the residence, where their
dislike for each other would pose
a potentially explosive situation.
In utilizing the remedies
of
c. 209A to alleviate this
concern, the judge erred. See
Uttaro v. Uttaro, 54 Mass.App.Ct.
871, 874-875, 768 N.E.2d 600 (2002)
(abuse prevention order permissible
only if predicate conditions shown
and not as prophylactic against putative
violations).
As observed in
Vittone v. Clairmont, 64 Mass.App.Ct.
at 486, 834 N.E.2d 258:
“A restraining order is not to be
issued ‘simply because it seems to
be a good idea or because it will
not cause the defendant any real inconvenience.’
Smith
v. Joyce, 421 Mass. 520, 523 n. 1[,
658 N.E.2d 677] (1995).
There must be more than
‘[g]eneralized apprehension, nervousness,
feeling aggravated or hassled,’
Wooldridge v. Hickey, 45 Mass.App.Ct.637,
639[, 700 N.E.2d 296 (1998)
], because what is of ‘central importance’*730
is the ‘fear of imminent serious
physical harm.’ Id.
at 641[, 700 N.E.2d 296].
The applicant's fear must
be more than ‘subjective and unspecified’;
viewed objectively, the question
is ‘whether the plaintiff's apprehension
that force may be used is reasonable.’
Carroll
v. Kartell, 56 Mass.App.Ct. [83,]
86-87 [, 775 N.E.2d 457 (2002) ].”
Here, the judge
did not believe that Randy had physically
abused Corrado or posed a threat of
imminent serious physical harm to
her. In these circumstances,
the judge's concern about what might
occur were both parties free to return
to the home unfettered by an order
was no different from the “[g]eneralized
apprehension” of abuse that the courts
have refused to recognize as abuse
under
c. 209A.
Wooldridge v. Hickey, supra;
Uttaro
v. Uttaro, 54 Mass.App.Ct. at 874,
768 N.E.2d 600. Keene
v. Gangi, 60 Mass.App.Ct. at 670-671,
805 N.E.2d 77. Indeed,
the judge's concern reflected as much
generalized fear of what Corrado might
do to Randy as of what Randy might
do to her. Having concluded
that Randy had not physically abused
or attempted to abuse Corrado in the
past and did not pose an imminent
threat of serious physical harm, there
was no objective basis for concluding
that abuse had been shown and the
judge lacked the power to impose a
protective order as a prudential measure.
We do not underestimate
the practical difficulty that faced
the judge or the impulse to continue
the order to vacate as insurance against
the possibility of abuse. However,
maintaining in place an abuse prevention
order under
c. 209A is not a permissible
remedy when abuse has not been proved.
While the judge was powerless
to impose a statutory remedy, other
avenues of judicial process remained
available to effectuate peaceful resolution
of the parties' apparently intractable
impasse, such as an equity action
in the Superior Court or a summary
process action.
In sum, the abuse
prevention orders issued against Hunt
III are affirmed, as is the initial
ex parte order against Randy. The
subsequent abuse prevention orders
issued against Randy are vacated.
The District Court judge
shall cause a direction to be sent,
conformably to the provision of
G.L. c. 209A, § 7,
third par., for the destruction of
all record of the vacated orders.
See
Vaccaro v. Vaccaro, 425 Mass. 153,
155-159, 680 N.E.2d 55 (1997).
So
ordered.
Mass.App.Ct.,2006.
Corrado
v. Hedrick
65
Mass.App.Ct. 477, 841 N.E.2d 723
Briefs
and Other Related Documents
(Back
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•
2005 WL 1520552 (Appellate
Brief) Reply Brief of Appellants (May.
25, 2005) Original Image of this Document
(PDF)
•
2005 WL 1304075 (Appellate
Brief) Brief For The Plaintiff/Appellee
(May. 11, 2005) Original Image of
this Document (PDF)
•
2005-P-0287 (Docket) (Mar.
04, 2005)
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