M.B. v. A.G.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-291

M.B.

vs.

A.G.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, A.G., appeals from the denial of his "Motion

for Relief from 2023 Abuse Prevention Order Extension" (motion

for relief). We vacate the denial and remand the matter to the

District Court for further proceedings.

Background.1 1. 2022 order and appeal. On December 30,

2020, the plaintiff, M.B., applied for an abuse prevention order

against her estranged husband, A.G., pursuant to G. L. c. 209A,

§ 3. A District Court judge issued a temporary ex parte order

The underlying facts of this matter stem from the evidence
1

presented at the February 8, 2023 abuse prevention order
extension hearing, which included testimony from both parties
and fifty-one exhibits admitted at the hearing. For additional
background, see our previous decisions in M.B. v. A.G., 104
Mass. App. Ct. 1104 (2024), and M.B. v. A.G., 103 Mass. App. Ct.
1126 (2024).
and, following a two-party hearing on January 13, 2021, issued a

one-year order. The following year, on January 13, 2022, after

a hearing where both parties appeared, the order was extended

for another year to January 12, 2023 (2022 order). On August

23, 2022, the defendant moved, pursuant to G. L. c. 209A, § 3,

and Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), to

retroactively vacate the 2022 order. That motion was denied,

and the defendant appealed to this court therefrom. On March

13, 2024, a panel of this court issued an unpublished decision

affirming the denial of the motion to vacate. See M.B. v. A.G.,

103 Mass. App. Ct. 1126 (2024).

2. 2023 order and appeal. On February 8, 2023, a

different District Court judge held another two-party hearing at

which both parties testified, and fifty-one exhibits were

admitted in evidence. On February 10, 2023, the judge extended

the abuse prevention order for two years to February 7, 2025

(2023 order). The defendant again appealed to this court

therefrom. On April 26, 2024, another panel of this court

issued an unpublished decision affirming the entry of the 2023

order. See M.B. v. A.G., 104 Mass. App. Ct. 1104 (2024). The

Supreme Judicial Court denied further appellate review. See

M.B. v. A.G., 494 Mass. 1104 (2024).

3. Motion for relief. Meanwhile, on February 6, 2024,

while the defendant's appeal from the issuance of the 2023 order

2
was pending in this court, the defendant filed a motion for

relief in the District Court from the 2023 order. In that

motion, the defendant represented, through counsel, that he had

just received unredacted copies of previously redacted medical

records, documenting that on January 4, 2021, the plaintiff told

a clinician that an emergency restraining order had issued

against the defendant and the plaintiff "reports feeling safe."

The defendant contended, in essence, that the victim's statement

on January 4 that she "felt safe" contradicted her sworn

statements, including those in her December 30, 2020 affidavit

and her February 8, 2023 testimony, that she was in fear of

imminent serious physical harm from the defendant. That same

day, the judge2 denied the motion for relief because the 2023

order was "presently on appeal at the Appeals Court[,]" and thus

the District Court "is without jurisdiction to act on the

motion." On February 15, 2024, the defendant filed a notice of

appeal from the denial of the motion for relief.3

Discussion. The defendant argues that the judge erred in

determining that the District Court lacked jurisdiction to act

2 The judge presiding over the motion for relief was the
same judge who had entered the 2023 order.

3 On March 18, 2024, the defendant filed a motion to
consolidate the appeal from the denial of the motion for relief
with the appeal of the 2023 order. On April 26, 2024, a
different panel of this court denied that motion.

3
on the motion for relief and thus should have adjudicated the

motion on its merits.4 The defendant acknowledges that

"[o]rdinarily, once an appeal has been docketed, the trial court

lacks jurisdiction to modify the judgment being appealed."

Quinn v. Gjoni, 89 Mass. App. Ct. 408, 411 (2016), citing

Springfield Redev. Auth. v. Garcia, 44 Mass. App. Ct. 432, 434-

435 (1998). The defendant contends, however, that "this rule

does not apply in the sui generis context of c. 209A abuse

prevention orders." Quinn, supra (explaining that pursuant to

G. L. c. 209A, § 3 (i), "an abuse prevention order that has been

issued can be modified 'at any subsequent time'" and that

"litigants should keep appellate courts apprised of any relevant

ongoing proceedings" [citation omitted]).

The plaintiff counters that the exception delineated in

Quinn does not apply to motions to retroactively vacate an abuse

prevention order, but instead applies solely to motions to

modify or prospectively terminate an abuse prevention order.

That purported distinction drawn by the plaintiff is unavailing

4 We take no position on whether the defendant met his
"burden of proving a significant change in circumstances."
MacDonald v. Caruso, 467 Mass. 382, 388 (2014). We further note
that on a defendant's motion to modify or terminate an abuse
prevention order, a "judge may not give meaning to a plaintiff's
silence or failure to appear, because a judge cannot know
whether silence reflects acquiescence in the termination or
continued fear of the defendant . . . Moreover, a plaintiff
shoulders no burden at a termination hearing and is entitled to
rest on the finality of the order." Id. at 391.

4
in the context of this case where Quinn likewise involved a

motion to vacate an abuse prevention order "in its entirety" and

we nonetheless determined that the trial court had jurisdiction

to consider the motion.

We note that the analysis here is somewhat complicated by

the nature and content of the defendant's motion for relief.

The defendant categorized his motion for relief as a motion

"primarily" pursuant to Mass. R. Civ. P. 60 (b) (2), that sought

to vacate the 2023 order on the ground of newly discovered

evidence (the unredacted records). However, the defendant also

argues, in part, that the motion in substance sought relief from

prospective application of the 2023 order. Viewed in this

light, the motion for relief arguably constituted a motion to

"vacate" or "terminate" as authorized by G. L. c. 209A, § 3.

See Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 774-780 (2005)

(explaining and distinguishing standard for deciding motion to

vacate retroactively on ground of newly discovered evidence with

standard for deciding motion for relief from prospective

application of abuse prevention order issued under c. 209A).

See also Guidelines for Judicial Practice: Abuse Prevention

Proceedings § 6:04 (Oct. 2021) (in considering whether to

conduct hearing on request for termination or modification,

judge should consider whether defendant has made preliminary

showing of changed circumstance, "and should be alert to

5
defendants using motions to modify or terminate to further

harass or abuse the plaintiff").

Here, the motion for relief was something of a hybrid,

seeking both forms of relief.5 See Mitchell, 62 Mass. App. Ct.

at 774. In the circumstances presented herein, we conclude that

the District Court had jurisdiction to entertain the motion for

relief.6 See Quinn, 89 Mass. App. Ct. at 411. Accordingly, the

order denying the motion for relief from the 2023 abuse

prevention order extension is vacated, and the case is remanded

5 Although the standards for deciding a motion filed under
rule 60(b) differ from those for a motion to vacate or terminate
filed under c. 209A, see Mitchell, 62 Mass. App. Ct. at 774-780,
trial court judges have substantial discretion in deciding
either type of motion. See Adoption of Quan, 470 Mass. 1013,
1014 (2014) (motions for relief from final judgment brought
under rule 60 [b] commended to judge's discretion and will not
be overturned except upon showing of clear abuse of discretion);
Litchfield v. Litchfield, 55 Mass. App. Ct. 354, 356 (2002)
(judges have broad discretion in deciding whether to modify or
renew abuse prevention orders). See also L.L. v. Commonwealth,
470 Mass. 169, 185 n.27 (2014).

6 Our conclusion is limited to the specific facts and
procedural posture of the present case. In addition, nothing
stated herein should be read to suggest any view of this court
regarding the merits of the motion for relief. We further note
that although the defendant did move to consolidate the appeal
from the denial of his motion for relief with the appeal of the
2023 order, see note 3, supra, the preferred course would have
been to seek leave from a single justice of this court to file
the motion for relief in the District Court while the appeal of
the 2023 order was pending. See Quinn, 89 Mass. App. Ct. at
411. In this regard, the judge's decision to deny the motion on
jurisdictional grounds was understandable.

6
to the District Court for further proceedings consistent with

this decision.7

So ordered.

By the Court (Blake, C.J.,
Neyman & Grant, JJ.8),

Clerk

Entered: January 14, 2025.

7 We decline the plaintiff's request for attorney's fees and
costs.

8 The panelists are listed in order of seniority.

7