05-P-287
Appeals Court
CHRISTINE CORRADO vs. HUNT
R. HEDRICK, JR., & another. [1]
No. 05-P-287.
Middlesex. December 12, 2005.
- January 31, 2006.
Present: Grasso, Dreben, &
Berry, JJ.
Abuse Prevention. Protective
Order. Statute, Construction.
Civil actions commenced in
the Framingham Division of
the District Court Department
on August 20, 2004.
Motions for abuse prevention
orders were heard by Paul
F. Healy, Jr., J., and motions
to dismiss the orders were
heard by Douglas W. Stoddart,
J.
Steven S. Epstein for the
defendants.
Dana Alan Curhan for the plaintiff.
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. [2]
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.
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." [3]
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.
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 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. [4]
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." [5]
The order has since expired. [6]
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 (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 (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).
The statute provides a potent
arsenal of remedies that "requires
great sensitivity for the
suffering and, sometimes,
mortal danger that flow from
domestic violence," Szymkowski
v. Szymkowski, 57 Mass. App.
Ct. 284, 286 (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, quoting from Jones
v. Gallagher, 54 Mass. App.
Ct. 883, 887 n.4 (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").
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 (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." [7]
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.
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 (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.
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 (1995); Jones v.
Gallagher, 54 Mass. App. Ct.
at 890; Keene v. Gangi, 60
Mass. App. Ct. 667, 669-670
(2004); Vittone v. Clairmont,
64 Mass. App. Ct. at 481 n.4.
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.[8]
See Jones v. Gallagher, 54
Mass. App. Ct. at 887 n.4,
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. 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 (2002);
C.O. v. M.M., 442 Mass. 648,
655-656 (2004).
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 (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. 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. 209 to
alleviate this concern, the
judge erred. See Uttaro v.
Uttaro, 54 Mass. App. Ct.
871, 874-875 (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:
"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 (1995).
There must be more than '[g]eneralized
apprehension, nervousness,
feeling aggravated or hassled,'
Wooldridge v. Hickey, 45 Mass.
App. Ct. [637, 639 (1998)],
because what is of 'central
importance' is the 'fear of
imminent serious physical
harm.' Id. at 641. 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 [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. Keene
v. Gangi, 60 Mass. App. Ct.
at 670-671. 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 (1997).
So ordered.
FOOTNOTES:
[1] Hunt R. Hedrick, III.
[2] As discussed infra,
the ex parte orders were proper.
[3] 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."
[4] 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."
[5] 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.
[6] The matter is not
moot. See Smith v. Joyce,
421 Mass. 520, 521 (1995)
(statute requires appropriate
law enforcement agency to
destroy record of vacated
orders); Wooldridge v. Hickey,
45 Mass. App. Ct. 637, 638
(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
(2002); Dollan v. Dollan,
55 Mass. App. Ct. 905, 905
n.2 (2002).
[7] 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.
[8] 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. |