Trial court's refusal to allow defendant to call witnesses and cross-examine witnesses during hearing on question of continuing temporary abuse prevention order violated defendant's constitutional rights of due process and statutory right to be heard. U.S.C.A. Const. Amend. 14; M.G.L.A. c. 209A, § 4. C.O. v. M.M. 442 Mass. 648 (Oct. 2004)

A defendant has a general right to cross-examine witnesses against him. C.O. v. M.M. 442 Mass. 648 (Oct. 2004)

Due process requires that the defendant be given an opportunity to testify and present evidence. U.S.C.A. Const. Amend. 14. C.O. v. M.M. 442 Mass. 648 (Oct. 2004)

While a defendant's right to present evidence is not absolute, and while a judge may limit cross-examination for good cause in certain situations, judicial discretion in limiting cross-examination is not unlimited, and each side must be given a meaningful opportunity to challenge each other's evidence. C.O. v. M.M. 442 Mass. 648 (Oct. 2004)

Although abuse prevention order proceedings were intended by the Legislature to be as expeditious and informal as reasonably possible, the proceedings may not violate the due process rights of defendants in an attempt to accommodate plaintiffs. U.S.C.A. Const. Amend. 14; M.G.L.A. c. 209A, § 1 et seq. C.O. v. M.M. 442 Mass. 648 (Oct. 2004)

A plaintiff seeking an initial domestic abuse prevention order on the basis of abuse must show that he or she is currently in fear of imminent serious physical harm, as well as that the fear is reasonable. M.G.L.A. c. 209A, § 1(b). Iamele v. Asselin 444 Mass. 734

Initial domestic abuse prevention order expires unless extended after a judicial determination, essentially, a new finding, that the plaintiff continues to require protection from abuse. M.G.L.A. c. 209A, § 1 Iamele v. Asselin 444 Mass. 734 .

When a person seeks to prove abuse by "fear of imminent serious physical harm," our cases have required in addition that the fear be reasonable. See Commonwealth v. Gordon, 407 Mass. 340, 349-350, 553 N.E.2d 915 (1990) Iamele v. Asselin 444 Mass. 734

A plaintiff seeking an initial order on the basis of abuse as defined in § 1 (b ) must show that he or she is currently in fear of imminent serious physical harm, see Dollan v. Dollan, 55 Mass. App.Ct. 905, 906, 771 N.E.2d 825 (2002), as well as that the fear is reasonable. Iamele v. Asselin 444 Mass. 734

Commonwealth v. Gordon, 407 Mass. 340, 349, 553 N.E.2d 915 (1990), requires proof of some act that places the complainant in reasonable apprehension that force may be used.

Commonwealth v. Delgado, 367 Mass. 432, 436-437, 326 N.E.2d 716 (1975), The complainant's "generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress," is insufficient in the continuance of a MA209A
Woolridge v. Hickey, 45 Mass. App. Ct. 637, 638-639, 700 N.E.2d 296 (1998)

Lattanzi v. Feinberg (Lawyers Weekly No. 81-192-05) (3 pages) (Appeals Court - Unpublished) (No. 04-P-598) (March 14, 2005).

Other helpful cites:

 

Commonwealth v. Gordon, 407 Mass. 340, 349, 553 N.E.2d 915 (1990), requires proof of some act that places the complainant in reasonable apprehension that force may be used.

Commonwealth v. Delgado, 367 Mass. 432, 436-437, 326 N.E.2d 716 (1975), The complainant's "generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress," is insufficient in the continuance of a MA209A 

Woolridge v. Hickey, 45 Mass. App. Ct. 637, 638-639, 700 N.E.2d 296 (1998)

From Commonwealth v Silva  SJC-08191

COMMONWEALTH vs. ANTHONY P. SILVA.

Plymouth. March 7, 2000. - April 11, 2000.

A no-contact order like this one would not be violated when a father has to speak on the telephone with a protected woman, in order to speak with his children, and he does so briefly, and in a direct and nonabusive way. Such contact would be a lawful incident of the order because there may be no other way for the father to exercise his right to reach his children. [3] This brief and inevitable contact, however, cannot be used as an occasion to harass, threaten, or intimidate the protected party. That form of conduct crosses the line between lawful incidental conversation, permitted by the order, and a substantive violation of its terms.

Where a plaintiff obtained a G.L. c. 209A order against the defendant, her ex-husband, the order must be vacated because the defendant's behavior toward the plaintiff is insufficient to establish that "serious harm" was imminent.

"The parties in this G.L. c. 209A case were divorced in 199' and have a son, Joshua (born October 30, 1991). On March 17, 2004, a friend accidentally dropped a barbell on Joshua's foot, crushing and breaking one of Joshua's toes and nearly ripping the toenail off. This was the second incident within a month involving medical treatment for the son and resulted in a nasty critique of the mother by the father, who contended that the mother had not contacted him quickly enough and had brought the child to a medical provider not of his choosing.

"The court found that 'the defendant's tone, both on the telephone and especially at the hospital, was of a threatening nature. It was abusive. The Court further finds and finds credible the plaintiff's statements that [the defendant] screamed at [the plaintiff] just inches away from her on a repeated basis while at the hospital. And the Court further finds that the nature of the shouts and comments would place her in fear of imminent harm. Statements were I'm going to take care of this, I'm going to take care of you, I'm going to get you. ... The Court further finds that shortly before this incident, the defendant on several occasions caused [a hockey bag] ... to strike her or push towards her, and ... this was done ... with the intent of either harassment or a veiled threat to her.'

"There was no evidence presented, nor did the judge find, that there was any physical abuse of the wife at any time, much less proof of imminent serious physical harm. ..."

Lattanzi v. Feinberg (Lawyers Weekly No. 81-192-05) (3 pages) (Appeals Court - Unpublished) (No. 04-P-598) (March 14, 2005).
Commonwealth v

Dolan v. Dolan Full Case

Appeals Court of Massachusetts.

Mary DOLLAN

v.

Jane DOLLAN. [FN1]

 FN1. The names are pseudonyms.
No. 00-P-1907.
July 22, 2002.

Adult daughter sought ex parte abuse prevention order against her mother. The trial court issued restraining order. Mother appealed. The Appeals Court held that: (1) appeal was not mooted by expiration of restraining order, and (2) evidence did not support issuance of order on allegation of past abuse.
Vacated.

[1] KeyCite Notes

62 Breach of the Peace
   62k15 Security or Order to Keep Peace or Protect Family
     62k21 k. Review. Most Cited Cases

Party against whom ex parte abuse prevention order was issued had a continuing interest in establishing that order was not lawfully issued, and thus, her appeal from that order was not rendered moot by order's expiration, where she could be adversely affected in the event of a future application for a restraining order against her or in bail proceedings. M.G.L.A. c. 209A, § 1 et seq.

[2] KeyCite Notes

62 Breach of the Peace
   62k15 Security or Order to Keep Peace or Protect Family
     62k15.1 k. In General. Most Cited Cases

62 Breach of the Peace KeyCite Notes
   62k15 Security or Order to Keep Peace or Protect Family
     62k20 k. Application and Proceedings Thereon. Most Cited Cases

A proceeding for an abuse prevention protective order is a civil rather than a criminal proceeding; however, such an order can have criminal penalties. M.G.L.A. c. 209A, § 1 et seq.

[3] KeyCite Notes

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 an abuse prevention protective order for placing another in fear of imminent serious physical harm, a judge must consider carefully whether serious physical harm is imminent; generalized apprehension, nervousness, feeling aggravated or hassled, that is, 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. M.G.L.A. c. 209A, § 1(b).

[4] KeyCite Notes

62 Breach of the Peace
   62k15 Security or Order to Keep Peace or Protect Family
     62k16 k. Nature of Remedy. Most Cited Cases

Issuance of an abuse prevention protective order for placing another in fear of imminent serious physical harm focuses on preventing imminent serious physical harm, not merely responding to past abuse. M.G.L.A. c. 209A, § 1(b).

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Commonwealth v. Finase

209A: Specifies which violations can be prosecuted as statutory offense and which may be prosecuted only under criminal contempt
Clarifies distinction between 'stay away' and 'no-contact'

Lawyers Weekly No. 16-016-00 (8 pages)
Winslow, First J.
Wrentham District Court
Attorneys were William T. Harrington and Edward J. McCormick III
Docket No. 9957CR1529.

http://www.state.ma.us/mdaa/courts/finase.html

UPDATED 2001

209A Orders

Types of Orders

violation of a "stay away" provision of an abuse prevention order may be prosecuted under G.L. c. 209A §7.

The abuse prevention order stated that the defendant was to have "no contact" and "to stay at least 100 yards" away from the victim. Shortly thereafter, the defendant attended a concert and stood 3-4 feet from the victim for 10-15 minutes. The victim reported the incident to the police, who arrested the defendant for violation of the order.

The District Court judge ruled that the "stay away" provision was not a statutory violation enumerated under c. 209A and therefore could not be prosecuted under that section, but only under a common law theory of criminal contempt. The judge relied upon Comm. v. Gordon, 407 Mass. 340 (1990). However, due to numerous statutory changes to c. 209A since Comm. v. Gordon, the SJC noted that the scope of §7 has expanded to include violations of orders to vacate, to refrain from abusing or to have no contact.

The SJC did clarify the distinction between "no contact" and "stay away." Because "a 'no contact' order mandates that the defendant not communicate by any means with the protected party…a 'no contact' order is broader than a 'stay away' order." The Court underscored that staying away from a person is "probably the most fundamental and important form" of not contacting the person.

The Court found no merit in the defendant's argument that such an interpretation would allow convictions for accidental or unintentional violations.

Where it is alleged that a defendant has violated an order that he stay at least 100 yards away from his ex-girlfriend, I find that he cannot be prosecuted under G.L.c. 209A, Sect. 7, as the violation of a "stay away" provision is not a statutory violation enumerated under Sect. 7.

Accordingly, the defendant's motion to dismiss is allowed without prejudice to prosecution for criminal contempt.

Analysis

"The Court first considers the Commonwealth's contention that any violation of a 209A order is punishable under G.L.c. 209A, Sect. 7. The Commonwealth asserts that the Legislature's 1990 amendment of Sect. 7, specifically the language that: 'Each abuse prevention order issued shall contain the following statement: VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE. Any violation of such order or a protection order issued by another jurisdiction shall be punishable by. ...' 'was enacted in direct response to the [Commonwealth v.] Gordon [407 Mass. 340 (1990)] decision and should be interpreted as foreclosing any doubt created by Gordon that criminal prosecutions under Sect. 7 are not limited to only certain types of violations.' ...

However, the Supreme Judicial Court has favorably cited Gordon since the 1990 legislative amendments, noting that '[w]e have read Sect. 7 as limiting to the enumerated offenses those actions which will constitute a criminal violation of G.L.c. 209A. Commonwealth v. Gordon, 407 Mass. 340, 345 (1990). All other violations of a c. 209A order cannot be prosecuted as a statutory offense; rather, they can be prosecuted as criminal contempt. ...' Commonwealth v. Delaney, 425 Mass. 587, 596 (1997).

The offenses enumerated in Sect. 7 which are punishable as statutory criminal violations are limited to orders requiring the defendant to 'vacate, refrain from abusing the plaintiff or to have no contact with the plaintiff.' The Trial Court Guidelines for Judicial Practice: Abuse Prevention Proceedings (October 1996; revised June 1997), cited with approval in Delaney, 425 Mass. at 596, provide in part at Sect. 8:02 that: 'CRIMINAL CONTEMPT, RATHER THAN A STATUTORY VIOLATION, MUST BE CHARGED WHERE THE DEFENDANT ALLEGEDLY VIOLATED AN ORDER OTHER THAN A REFRAIN FROM ABUSE, NO-CONTACT, VACATE OR GUN SURRENDER ORDER.'

Accordingly, the Court finds that the Commonwealth cannot prosecute, as it claims, any violation of an Abuse Prevention Order under G.L.c. 209A, Sect. 7 absent enumeration of the offense under the statute.

"The Commonwealth's remaining contention presents a thornier issue. The Commonwealth asserts that 'the defendant's violation of the "stay at least 100 yards away" provision was part of the "no-contact" provision of the restraining order ... and, as such, constitutes a "no-contact" violation' which is an enumerated offense under Sect. 7. ...

The Court is mindful that 'c. 209A represents a legislative response to the troubling social problem of family and household abuse in the Commonwealth. Judicial orders issued pursuant to c. 209A afford abused individuals the opportunity to avoid further abuse and to provide them with assistance in structuring some of the basic aspects of their lives, such as economic support and custody of minor children, in accordance with their right not to be abused.' ...

For this reason, the Court will broadly construe the language of the Abuse Prevention Order to effectuate its protective purpose. However, the Court also is mindful that '[c]riminal statutes are strictly construed and must give "clear warning" of the particular conduct which is proscribed. ... "Words or phrases in a statute are to be given their ordinary meaning. They are to be construed according to their natural import. ... [They] are to be given their ordinary lexical meaning unless there be a clear indication to the contrary." ...' ...

"The meaning of the phrase 'no contact,' while broadly construed by the Appeals Court, never has been stretched to include mere proximity without some verbal or non-verbal 'communication' or contact. ... A broad reading of the Abuse Prevention Order would support a finding that 'stay at least 100 yards from the Plaintiff' means something more, and hence affords greater protection, than merely to have 'no contact.' Indeed, if 'stay away' were comprehended within the 'no contact' provision, there would be no reason for the Appeals Court and Supreme Judicial Court to refer separately to 'no contact' and 'stay away' orders. ...

For these reasons, the Court finds that the reference to 'no contact' in G.L.c. 209A, Sect. 7 is not a short-hand reference to the provision to 'stay away' from the plaintiff. The provision to 'stay away' from the plaintiff affords greater protection to the plaintiff than the provision for the defendant to have 'no contact' with the plaintiff. Accordingly, violation of an order to 'stay away' from the plaintiff at unspecified locations is not an enumerated offense under Sect. 7 and cannot be prosecuted except as criminal contempt."

Order

"For the reasons stated and based on applicable law, [defendant Timothy] Finase's motion to dismiss is allowed without prejudice to prosecution for criminal contempt."

Commonwealth v. Finase (Lawyers Weekly No. 16-016-00) (8 pages) (Winslow, First J.) (Wrentham District Court) Attorneys were William T. Harrington and Edward J. McCormick III (Docket No. 9957CR1529).

Abuse Prevention Orders, Case Law PRACTICE TIPS | GUIDELINES | SAMPLE FORMS | STATUTES | CASE LAW Commonwealth v. Crimmins, 46 Mass.App.Ct. 489, 707 N.E.2d 832 (1999) Subject of case: Defendant charged with violating extended order raised issue of whether he actually received notice that order existed. Defendant received notice either by a copy of the order being delivered in hand or leaving a copy at his last and usual address, which was enough to conclude that the defendant received notice that was reasonably intended to reach him. Defendant's prior bad acts could be used to establish a pattern or course of conduct of battering. Doe v. Mercer, 37 F.Supp.2d 64 (1999) Commonwealth v. Blessing, 43 Mass.App.Ct. 447, 683 N.E.2d 724 (1997) Subject of case: Extended protective order pursuant to G.L. c. 208, § 34B was questionably valid. Regardless, the events occurred after the protective order expired so defendant did not violate the protective order. EHS v. Commonwealth, 424 Mass. 1011, 676 N.E.2d 449 (1997) Vaccaro v. Vaccaro, 425 Mass. 153, 680 N.E.2d 55 (1997) Subject of case: Defendant wanted his name and record of civil protective orders taken off of his record and the state's domestic violence record keeping system. Defendant' rights were not injured or violated by pacing his name in the statewide domestic violence record keeping system. Larkin v. Ayer District Court, 425 Mass. 1020, 681 N.E.2d 817 (1997) Subject of case: Sending of legal notification threatening lawsuits does not constitute under 209A to warrant a protective order. Generalized apprehension, nervousness, feeling feeling aggravated or hassled, when there is no threat of imminent serious physical harm does not create fear of imminent serious harm. Jordan v. Westfield District Court, 425 Mass. 1016, 681 N.E.2d 276 (1997) Subject of case: Request for protection order denied because husband was incarcerated, the physical harm feared by the wife was not sufficiently proven or threatened to justify the protection order. Commonwealth v. Molloy, 44 Mass.App.Ct. 306, 690 N.E.2d 836 (1998) Subject of case: Annual extension of protective order, defendant had no notice that it would be reinstated if he failed to show and the plaintiff did, therefore there was no actual constructive notice of the protective order. Defendant could not violate the protective order because he did not know about the order. Commonwealth v. Collier, 427 Mass. 385, 693 N.E.2d 673 (1998) Subject of case: State must show intent when charging the defendant with violating a protective order when a third party may be committing the act without the defendant's knowledge. Defendant was in car driven by brother, claimed he was unaware of his brother driving close to victim in parking garage. This case is distinguished from Delaney. Matter of John Markey, 427 Mass. 797, 696 N.E.2d 523 (1998) Subject of case: Judge was disciplined in part for communicating to another judge that led to that judge dismissing an abuse prevention order. He also failed to enter a prevention order against the defendant, and he knew the defendant. Wooldridge v. Hickey, 45 Mass.App.Ct. 637, 700 N.E.2d 296 (1998) Subject of case:Order to stay away from wife against husband would remain, but order to stay away from the children the children would not remain because there was insufficient evidence to show the children were abused by father or in fear for their safety. When the transcript or record is unclear as to what the victim was stating for her reasons to fear her ex-husband, it was the husband's duty to clarify what those statements were and how they would support his request for a motion to vacate the findings. Commonwealth v. Basile, 47 Mass.App.Ct. 918, 712 N.E.2d 633 (1999) Subject of case: Defendant violated stay away order by contacting the victim by appearing one block away from her house. Pike v. Maguire, 47 Mass.App.Ct. 929, 716 N.E.2d 686 (1999) Subject of case: Despite actual evidence of physical harm within one year of the protective order, the order could be extended when the victim could show continued fear and need. For use by Family Law Network Members Become a Family Law Network Member Commonwealth v. Beals, 405 Mass. 550, 541 N.E.2d 1011 (1989) Cobb v. Cobb, 406 Mass. 21, 545 N.E.2d 1161 (1989) Commonwealth v. Gordon, 407 Mass. 340, 553 N.E.2d 915 (1990) Callahan v. Boston Municipal Court, 413 Mass. 1009, 604 N.E.2d 1287 (1992) Mahoney v. Commonwealth, 415 Mass. 278, 612 N.E.2d 1175 (1994) Brossard v. West Roxbury District Court, 417 Mass. 183, 629 N.E.2d 295 (1994) Frizado v. Frizado, 420 Mass. 542, 651 N.E.2d 1206 (1995) Smith v. Joyce, 421 Mass. 520, 658 N.E.2d 677 (1995) Delk v. Gonzalez, 421 Mass. 525, 658 N.E.2d 681 (1995) Patrick Henry Flynn v. Lenna Warner, 421 Mass. 1002, 654 N.E.2d 926 (1995) Silvia v. Duarte, 421 Mass. 1007, 657 N.E.2d 1262 (1995) Parekh v. Parekh, 421 Mass. 1009, 659 N.E.2d 740 (1996) Commonwealth v. Butler, 40 Mass.App.Ct. 906, 661 N.E.2d 666 (1996) Commonwealth v. O'Shea, 41 Mass.App.Ct. 115, 668 N.E.2d 861 (1996) Zullo v. Goguen, 423 Mass. 679, 672 N.E.2d 502 (1996)

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