Corrado v. Hedrick - Abuse Prevention Restraining
Order Limitations - Massachusetts |
|
|
|
65 Mass.App.Ct. 477, 841 N.E.2d 723 |
|
(Cite as: 65 Mass.App.Ct. 477, 841 N.E.2d 723) |
|
Briefs and
Other Related Documents
Appeals Court
of Massachusetts,Middlesex.
Christine
CORRADO
v.
Hunt R.
HEDRICK, Jr., & another.FN1
FN1.
Hunt R. Hedrick, III.
No.
05-P-287.
Argued Dec.
12, 2005.
Decided Jan.
31, 2006.
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.
[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); *729Jones
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 to top)
•
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)
END OF
DOCUMENT
© 2006
Thomson/West. No Claim to Orig. U.S. Govt. Works.
|