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
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