Woolridge v. Hickey |
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45 Mass.App.Ct. 637, 700 N.E.2d 296 |
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(Cite as: 45 Mass.App.Ct. 637, 700 N.E.2d 296) |
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Appeals
Court of Massachusetts,Franklin.
Denise
E. WOOLDRIDGE
v.
Steven
C. HICKEY.
No.
97-P-0551.
Argued
June 3, 1998.
Decided
Oct. 13, 1998.
Former wife
filed application for abuse prevention order against her former husband.
The Probate and Family Court Department,
David M. Fuller, J., issued abuse prevention orders against
former husband. Former husband appealed. The Appeals Court,
Kass, J., held that: (1) expiration of abuse prevention
orders did not render former husband's appeal moot; (2) abuse prevention
orders directing former husband to stay away from former wife would not
be disturbed on basis of record; and (3) there was insufficient evidence
of abuse to support issuance of abuse prevention order directing former
husband to stay away from his children.
Affirmed in
part and vacated in part.
West
Headnotes
[1] Breach of the Peace 62
21
62 Breach of the Peace
62k15
Security or Order to Keep Peace or Protect Family
62k21
k. Review.
Most Cited Cases
Expiration of abuse prevention orders issued against former husband did
not render his appeal from the orders moot, where entries of the orders
were made in Commonwealth's criminal records system, former husband
could be adversely affected by them in event of future applications for
protective order or in bail proceedings, and former husband had interest
in removing stigma from his name and record by establishing that orders
were not lawfully issued. M.G.L.A.
c. 209A, § 1 et seq.
[2] 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
Generalized apprehension, nervousness, feeling aggravated or hassled,
i.e., psychological distress from vexing but nonphysical intercourse,
when there is no threat of imminent serious physical harm, does not rise
to the level of “fear of imminent serious physical harm”, so as to
support issuance of abuse prevention order. M.G.L.A.
c. 209A, § 1.
[3] 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
In
deciding whether to issue abuse prevention order, the judge must focus
on whether serious physical harm is imminent and should not issue an
order on the theory that it will do no harm, i.e., seems to be a good
idea or because it will not cause the defendant any real inconvenience.
M.G.L.A.
c. 209A, § 1.
[4] Breach of the Peace 62
21
62 Breach of the Peace
62k15
Security or Order to Keep Peace or Protect Family
62k21
k. Review.
Most Cited Cases
On former
husband's appeal, Appeals Court would not disturb abuse prevention
orders issued against former husband in favor of his former wife,
despite absence of evidence of abuse in transcripts, where questions
posed to former wife by trial judge showed that he realized need to
establish fear of imminent serious physical harm, transcript read
“inaudible” at point former wife responded to judge's question, and
former wife's answer could have described past physical harm and fear of
repeat performance. M.G.L.A.
c. 209A, § 1.
[5] Appeal and Error 30
497(1)
30 Appeal and Error
30X
Record
30X(A)
Matters to Be Shown
30k497
Grounds of Review
30k497(1)
k. In General.
Most Cited Cases
It is the
burden of an appellant to provide Appeals Court with those portions of
the record that support his claims on appeal.
[6] Appeal and Error 30
497(1)
30 Appeal and Error
30X
Record
30X(A)
Matters to Be Shown
30k497
Grounds of Review
30k497(1)
k. In General.
Most Cited Cases
A party
claiming an insufficiency of evidence has the burden on appeal of
furnishing the court with all the evidence.
[7] Breach of the Peace 62
21
62 Breach of the Peace
62k15
Security or Order to Keep Peace or Protect Family
62k21
k. Review.
Most Cited Cases
Abuse
prevention orders and their review on appeal are civil in nature, not
criminal. M.G.L.A.
c. 209A, § 1.
[8] Appeal and Error 30
766
30 Appeal and Error
30XII
Briefs
30k766
k. Defects, Objections, and Amendments.
Most Cited Cases
An
appellate court is free to disregard argument based on transcript not
furnished to the court.
[9] 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
Former
wife's claim that her former husband subjected their children to verbal
harassment and her statement that former husband hit their son and
grabbed him when angry did not demonstrate “abuse”, as would support
issuance of abuse prevention order directing former husband to stay away
from his children. M.G.L.A.
c. 209A, § 1.
*297
Joanne I. DeLong, Hadley, for defendant.
Before
KASS,
SPINA and
BECK, JJ.
KASS, Justice.
On the
ground that the record is devoid of any evidence of abuse in the
statutory (G.L. c. 209A) sense, Stephen Hickey appeals from abuse
prevention orders issued against him by a Probate Court judge.
Although the record induces concern that, notwithstanding an absence
of evidence of abuse, the judge may have acceded to the use of c. 209A
orders as a bargaining chip in connection with pending proceedings for
modification of a divorce judgment, Hickey has left a crucial gap in the
record that causes us to leave the main order undisturbed. The appeal
is properly before us under
Zullo v. Goguen, 423 Mass. 679, 682, 672 N.E.2d 502 (1996),
and an order of a single justice allowing late filing of a notice of
appeal.
1.
Circumstances of the c. 209A orders. Under a divorce judgment that
issued some years before the proceedings now under review, Wooldridge
and Hickey had joint legal custody of their three children and Hickey
had physical custody of them. Before she applied for an abuse
prevention order, Wooldridge had filed a complaint for modification of
the divorce judgment. FN1
Although that judgment had placed physical custody of the children with
Hickey, the children had, apparently, come to spend more time with their
mother, Wooldridge, than their father, Hickey. Disputes about
responsibility and financial obligations continued to roil between
Wooldridge and Hickey. Following Wooldridge's application for a c.
209A order, the judge issued three sets of orders: first, on
September 4, 1996, he issued ex parte orders directing Hickey to stay
away from Wooldridge and, somewhat anomalously, from the three children
of whom he had physical custody and joint legal custody; second,
an order issued September 12, after hearing, that *298 extended
the abuse prevention order requiring Hickey to stay away from Wooldridge
until November 26; third, on that latter date, the judge
extended the order for an additional six months.
FN1. The record contains neither the judgment of divorce nor
the complaint for modification. We know of the existence of those
documents from testimony during the c. 209A hearings but know few of
their details.
[1] 2. Mootness. Although the abuse prevention
orders have expired, Hickey's appeal is not moot. Entries of the
orders against Hickey have now been made in the Commonwealth's criminal
records system, and Hickey could be adversely affected by them in the
event of future applications for an order under G.L. c. 209A or in bail
proceedings. Frizado
v. Frizado, 420 Mass. 592, 593-594, 651 N.E.2d 1206 (1995).
Hickey has a surviving interest in establishing that the orders were
not lawfully issued, thereby, to limited extent, removing a stigma from
his name and record. Section 7, third par., of G.L. c. 209A provides
that whenever an abuse prevention order is vacated, the court shall
direct the appropriate law enforcement agency to destroy all record of
the vacated order. See
Smith v. Joyce, 421 Mass. 520, 521, 658 N.E.2d 677 (1995).
As to the limited nature of that destruction (it does not extend to
expunging records from the Statewide domestic violence record-keeping
system created by St.1992, c. 188, § 7), see
Vaccaro v. Vaccaro, 425 Mass. 153, 155-159, 680 N.E.2d 55 (1997).
Contrast
Wotan v. Kegan, 428 Mass. 1003, 697 N.E.2d 133 (1998).
[2][3]
3. Evidence of abuse. For purposes of obtaining a protective
order under G.L. c. 209A, abuse means: “(a) attempting to cause or
causing physical harm; (b) placing another in fear of imminent serious
physical harm; (c) causing another to engage involuntarily in sexual
relations by force, threat or duress.” G.L.
c. 209A, § 1, as appearing in St.1990, c. 403, § 2.
Generalized apprehension, nervousness, feeling aggravated or hassled,
i.e., psychological distress from vexing but nonphysical intercourse,
when there is no threat of imminent serious physical harm, does not rise
to the level of fear of imminent serious physical harm. Larkin
v. Ayer Div. of the Dist. Court Dept., 425 Mass. 1020, 681 N.E.2d
817 (1997). The judge must focus on whether serious
physical harm is imminent and should not issue a
c. 209A order on the theory that it will do no harm, i.e.,
“seems to be a good idea or because it will not cause the defendant any
real inconvenience.” Smith
v. Joyce, 421 Mass. at 523 n. 1, 658 N.E.2d 677.
[4][5][6][7][8]
In the transcript of the proceedings in the Probate Court, Wooldridge
never speaks of having suffered physical harm; of being in fear of
imminent serious physical harm; or of having been caused through force
to engage in unwanted sexual relations.FN2
In the main, what Wooldridge had to say to the judge was that there
seemed to be no reasonable negotiating with her former husband and that
she could not stand arguing with him. She thought a protective order
would level the field in the forthcoming custody and support
discussion-obviously not an appropriate criterion for issuance of an
abuse prevention order. During the ex parte hearing, in particular,
Wooldridge spoke only of Hickey having been “abusive” and “verbally
abusive.” There was no questioning that explored what she meant by
that. The following excerpt from the transcript of the second hearing
(following the ex parte one) conveys the flavor of her testimony on that
occasion:
FN2. Counsel for Hickey did not include the transcript of the
proceedings in the Probate Court in the record-appendix. Abuse
prevention orders and their review on appeal are civil in nature, not
criminal. Transcript of proceedings in the trial court does not
automatically come before us. An appellate court is free to disregard
argument based on transcript not furnished to the court. Kunen
v. First Agric. Natl. Bank, 6 Mass.App.Ct. 684, 689, 382 N.E.2d 750
(1978). Arch
Med. Assocs., Inc. v. Bartlett Health Enterprises, Inc., 32
Mass.App.Ct. 404, 406, 589 N.E.2d 1251 (1992). As matter of
discretion, we sent on our own motion to the register of probate in
Franklin County, who furnished us with a copy of the transcript, but
under the cases cited, we were not bound so to do.
the Court:
“Right, but why does that cause you to feel that you need a restraining
order to be in force? Are you getting hate mail from him or you just-”
ms.
Wooldridge: “No, (inaudible)-I couldn't get what I needed from the
divorce (inaudible) because there's no negotiations (inaudible).”
the
Court: “But does he do more than that, does he threaten you, does he-”
ms.
Wooldridge: “He wants (inaudible).”
ms.
Dulong: “I would object to that. She wrote something up, your honor.
I'm not *299 (inaudible) she's going to testify. I haven't
had a chance to see it.”
the
Court: “Is that a recitation of some prior incidents?”
ms.
Wooldridge: “Yes, just to explain to you what I had to go through the
first time and letters from people that (inaudible).”
the
Court: “But my question to you is why do you feel you need the
additional protection of an order for abuse and to stay away from your
residence and not contact you, which if you didn't have you feel you'd
be subject to some danger or imminent physical harm?”
ms.
Wooldridge: “Yes.”
the
Court: “Why? Why do you feel that?”
ms.
Wooldridge: “Because (inaudible).”
the
Court: “That was when you were living with him, right? You were
married?”
ms.
Wooldridge: “That was when we negotiated our divorce. Every time
(inaudible).”
the
Court: “Okay. And what's happened recently? You've been separated for
seven years?”
ms.
Wooldridge: “Yeah, and the divorce says that I do what I do, and there
was just fighting about everything; it was just literally no child
support payments, take care of all the important issues (inaudible), and
there is no attempt, you know, at discussion, there's just intimidation,
there's threats he's going to take them away from me, threatens them
he's going to take them away from me. My children depend on me.”
the
Court: “So you feel the ability to seek legal redress on the relative
responsibilities to the children under the divorce, you feel that you
have unequal abilities to negotiate with him because of his intimidating
tactics, is that what you're saying?”
ms.
Wooldridge: “Yes.”
The
questions that the judge put to Wooldridge that we have underscored show
that he had not lost sight of the central importance of the fear of
imminent serious physical harm in these cases. See
Commonwealth v. Gordon, 407 Mass. 340, 348-349, 553 N.E.2d 915
(1990). The judge inquires of Wooldridge why she feels she
is subject to some danger of imminent physical harm. Wooldridge merely
responds, “Yes.” The judge then asks, “Why? Why do you feel that?” The
transcript reads, “Because,” and then, just short of the meat in the
coconut, reads “inaudible.” The answer may have described past
physical harm and fear of a repeat performance that gave the judge a
basis for his order.FN3
We are not prepared, as a reviewing court, to hypothesize the absence
of a response that might support a finding of fear of imminent serious
physical harm. It is, of course, the burden of an appellant to provide
us with those portions of the record that support his claims on appeal.
Arch
Med. Assocs., Inc. v. Bartlett Health Enterprises, Inc., 32
Mass.App.Ct. 404, 406, 589 N.E.2d 1251 (1992). A party
claiming an insufficiency of evidence, therefore, has the burden on
appeal of furnishing the court with all the evidence. Gaps in an audio
record of the kind that appeared here can be repaired by using the
procedure set out in
Mass.R.A.P. 8(b)(3)(v), as amended, 388 Mass. 1110 (1983),
captioned: “Unintelligible Portions of the Cassette.”
FN3. It did not escape our notice that, in continuing his
colloquy with Wooldridge, the judge remarks, “Okay,” and then asks, “And
what's happened recently?” Wooldridge's response describes no current
conduct that amplifies her earlier claim of fear of some imminent
physical harm. We do not think, however, that this exchange justifies
an assumption on our part that Wooldridge's response recorded as
inaudible gave the trial judge nothing to go on to support his ultimate
finding and order.
[9] On the basis of the record, as it was allowed to stand,
we shall not disturb the issuance of the protective order issued
September 12, 1996, directing Hickey to stay away from Wooldridge.
There was no evidence that warranted issuance of the ex parte order of
September 4, but that order was subsumed by the posthearing order of
September 12. There was no evidence of imminent serious physical harm
to the children. The most that Wooldridge said about the children,
other than that they were subjected to verbal harassment by their
father, *300 is that their father “has hit my son and grabs him
when angry.” Without further explanation, that statement was not
evidence of abuse within the meaning of the statute.
The orders
of September 12 and November 26, 1996, directing the defendant Hickey to
stay away from Wooldridge are affirmed. The order to him to stay away
from his children is vacated. The Probate Court judge shall cause a
direction to be sent, conformably with
G.L. c. 209A, § 7, third par., for the destruction of all
record of the vacated order.
So
ordered.
Mass.App.Ct.,1998.
Wooldridge v. Hickey
45
Mass.App.Ct. 637, 700 N.E.2d 296
END OF
DOCUMENT
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