M.F. v. J.W.

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-86

M.F.

vs.

J.W.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court judge declined to issue a G. L. c. 209A

abuse prevention order (209A order) against the defendant. The

plaintiff appeals and argues that the judge erred in excluding

evidence and abused his discretion by conducting an extension

hearing with procedural defects. We affirm.

Background. We summarize the facts as the judge may have

found them. See G.B. v. C.A., 94 Mass. App. Ct. 389, 390

(2018). The plaintiff is a non-native English speaker who

primarily speaks Japanese. She and the defendant were married

in 2001, separated in 2015, and divorced in 2017. They resided

in Japan beginning in 2003 until they moved to Massachusetts in
2011. They have three teenage children, over whom custody was

in dispute at the time of the hearing at issue in this appeal.

On July 5, 2023, the plaintiff applied for and was granted

an ex parte 209A order. The plaintiff's affidavit asserted that

during her marriage the defendant had sexually assaulted her,

and that the defendant had also made several threatening

statements including that he wanted the plaintiff to be raped,

murdered, and left on the side of the road. The plaintiff

stated that she had moved and withheld her address from the

defendant, but that the defendant had filed a motion in the

Probate and Family Court to disclose her address. The plaintiff

ultimately provided her address to the defendant, because she

was "told I had no choice without a restraining order."

Both parties were present for a two-party hearing on July

31, 2023; however, due to issues interfacing with the Japanese

interpreter on a video call, the judge (original judge)

terminated the hearing shortly after it began, requesting that

the case be rescheduled so that the interpreter could be

physically present at the next scheduled hearing date. Another

hearing was scheduled for and took place on August 28, 2023.

Both parties were present and represented by counsel. A

different judge (hearing judge) notified the parties that the

original judge had a personal scheduling conflict and would be

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unable to hear the case. The hearing judge explained that,

because the original judge had only heard about fifteen minutes

of testimony, the hearing would be "starting over." The

interpreter was not physically present at the court house, and

the hearing judge elected to proceed with a Japanese interpreter

via video call. While the defendant's attorney voiced concerns

about proceeding with the hearing without the interpreter

appearing in person, neither party objected.

The hearing proceeded, and the plaintiff testified that she

had been sexually assaulted by the defendant several times

during their marriage and that, in 2015, she had reported the

abuse to the police and to personnel at the children's school.

The plaintiff testified that she did not request a 209A order or

pursue criminal charges until 2022, when she learned from the

defendant's current wife that the defendant repeatedly wished

for the plaintiff's death in front of their children and made

other remarks that made the plaintiff concerned for her safety.

In addition to her testimony, the plaintiff introduced in

evidence a 2018 Spencer police department log where the

defendant requested repeated welfare checks of the plaintiff and

the children despite the fact that police confirmed that they

were safe, and a 2023 Brookfield police department report in

which the plaintiff disclosed past sexual abuse by the defendant

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and reported that the defendant had recently made statements

that were threatening in nature. The plaintiff attempted to

admit in evidence Department of Children and Family (DCF)

records. The DCF records consisted of a 2022 report filed

pursuant to G. L. c. 119, § 51B, and a family action plan, both

of which the plaintiff argued were relevant because they

supported her claim that the defendant abused and neglected

their children and the defendant's current wife and corroborated

her statement that she had disclosed the defendant's sexual

abuse of her to her child's elementary school teacher in 2015.

The defendant objected to their admission on several grounds,

arguing that the DCF records were hearsay, the plaintiff's 2015

disclosure to school personnel was too remote in time, and the

plaintiff had not provided the DCF records to the defendant

prior to the hearing. The defendant argued that because he did

not have access to the DCF records and had just received them,

it would be unfairly prejudicial to allow them into evidence.

The hearing judge excluded the DCF records.

The plaintiff testified that there were "two major reasons"

why she was seeking a 209A order. First, the plaintiff was

concerned for her safety due to the defendant's repeated

threatening remarks, allegedly communicated to the parties'

children and the defendant's current wife, including that the

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plaintiff "should be kidnapped, raped, and murdered and left by

the side of the road." The plaintiff added that the defendant's

current wife overheard a conversation between the defendant and

"a construction guy or something" that the defendant wanted to

kill the plaintiff. Second, the plaintiff had moved to a new

address and did not want to disclose that information to the

defendant. The plaintiff stated that her lawyer had told her

that unless she had a 209A order, her new address would have to

be disclosed.

The plaintiff's counsel completed direct examination of the

plaintiff, and the hearing judge commented that the plaintiff

had rested and turned to the defendant, who was represented by

two attorneys. The defendant's first attorney cross-examined

the plaintiff, attacking her credibility and probing the

plaintiff's motive to fabricate the allegations against the

defendant to gain advantage in the contested custody dispute in

the Probate and Family Court and to avoid providing the

defendant with her new address. The defendant's second attorney

then conducted cross-examination, also focusing on

inconsistencies in the plaintiff's statements, her credibility,

and her motive to lie. At this point, the hearing had lasted

approximately one and one-half hours, and the hearing judge

warned counsel that the hearing would need to conclude. The

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defendant's attorney responded that she intended to conduct

cross-examination of the plaintiff on several other areas

related to the divorce proceedings. The hearing judge replied,

"[w]e'll schedule for another day for evidence from the

defense," and asked both counsel for argument on whether the

plaintiff had put forward enough evidence to support an

extension of the 209A order.1 After arguments, the hearing judge

took the matter under advisement, noting that if he determined

that the plaintiff had satisfied her burden of proof, the matter

would be rescheduled for another hearing so that the defendant

could present evidence.

On August 29, 2023, the hearing judge denied the

plaintiff's request to extend the 209A order, finding that the

plaintiff failed to establish, by a preponderance of the

evidence, that she had been sexually abused by the defendant

between 2011 and 2015 or that the defendant had recently

threatened to harm her. This appeal followed.

Discussion. The plaintiff argues that the hearing judge

abused his discretion by excluding the DCF reports, allowing the

hearing to proceed with an interpreter who was not there in

person, restricting the testimony and examination of the

1 At the time the hearing judge stopped the hearing, the
plaintiff had not rested, but both parties proceeded to argument
without offering any objection.

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plaintiff, and failing to issue a written decision that

contained specific findings of fact. We address each of the

plaintiff's arguments in turn.

1. Evidentiary ruling. We review a trial judge's

evidentiary ruling for an abuse of discretion recognizing that a

"judge has broad discretion to make evidentiary rulings and

substantial discretion to determine whether evidence is

relevant." (quotations and citations omitted). Laramie v.

Philip Morris USA Inc., 488 Mass. 399, 413 (2021). An abuse of

discretion occurs "where we conclude the judge made a clear

error of judgment in weighing the factors relevant to the

decision such that the decision falls outside the range of

reasonable alternatives." Luppold v. Hanlon, 495 Mass. 148,

154-155 (2025), quoting L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014). "The test when evaluating whether the exclusion of

evidence rises to prejudicial error is 'whether the proponent of

erroneously excluded, relevant evidence has made a plausible

showing that the trier of fact might have reached a different

result if the evidence had been before it.'" Luppold, supra at

155, quoting DeJesus v. Yogel, 404 Mass. 44, 48-49 (1989).

The plaintiff argues the exclusion of the DCF records was

erroneous and requires reversal. Specifically, the plaintiff

argues that the hearing judge committed an error of law by

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strictly applying the rules of evidence in a 209A hearing. Had

the hearing judge applied the correct standard, the plaintiff

argues, the DCF records would have been admitted and the

restraining order would have been granted. Alternatively, the

plaintiff argues that the DCF records were improperly excluded

because they qualified as a business record. We are not

persuaded.

The plaintiff correctly states that in the context of a

209A hearing, the rules of evidence do not need to be strictly

followed "provided that there is fairness in what evidence is

admitted and relied on." A.P. v. M.T., 92 Mass. App. Ct. 156,

161 (2017), quoting Frizado v. Frizado, 420 Mass. 592, 597-598

(1995). On this record, we cannot say that it was an abuse of

discretion or improper for the hearing judge to exclude the DCF

records when they were not provided to the defendant's counsel

prior to the hearing. While the hearing judge did not

articulate the specific reason for excluding the DCF records, we

think that a fair inference from the record is that the basis

for the judge's ruling was that the DCF records were not

provided to the defendant's counsel in advance. In fact, in her

brief, the plaintiff concedes that the hearing judge excluded

the 51B report on the grounds that it should have been provided

sooner and that admitting the evidence would result in unfair

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prejudice. Despite relaxed rules of evidence at a 209A hearing,

the defendant must be afforded a meaningful opportunity to

review the evidence and potentially challenge its admissibility

on grounds such as the lack of authenticity or the

inadmissibility of the hearsay contained in the reports.2 Here,

it is undisputed that the defendant did not have independent

access to the DCF records and was not provided with them prior

to the hearing. Therefore, the hearing judge did not abuse his

discretion in the exclusion of the evidence.

2. Hearing procedure. Next, the plaintiff argues the

August 28 hearing lacked the "minimum standards of fairness"

required in a 209A proceeding. S.T. v. E.M., 80 Mass. App. Ct.

423, 429 (2011). See Frizado, 420 Mass. at 598. Specifically,

the plaintiff claims the hearing judge abused his discretion by

terminating the defendant's cross-examination of the plaintiff

and not providing the plaintiff's counsel with an opportunity to

conduct redirect examination. The plaintiff also claims that

2 The plaintiff's next contention that the DCF records
qualified as business records does not fare any better. The
plaintiff failed to argue that the DCF records qualified as
business records to the hearing judge and as such her argument
is waived. Moreover, whether the DCF records qualified as
business records or not, the question remains whether the judge
erred by excluding the DCF records on the ground that the
defendant did not have an opportunity to review them in advance.
As stated earlier, we agree with the plaintiff that the rules of
evidence are not strictly applied in the context of a 209A
hearing.

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the hearing lacked fairness because the interpreter was not

present in person. While the plaintiff's argument regarding the

hearing judge's termination of her testimony has some force, the

plaintiff did not object to any of these claimed errors.3 These

arguments, having not been raised by the plaintiff at the

hearing level, are waived. See Conway v. Planet Fitness

Holdings, LLC, 101 Mass. App. Ct. 89, 101 (2022). See also

Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 639 (2001) ("The

consequence of the failure to properly object at trial is to

waive the issue on appeal").

3. Failure to provide specific factual findings. Lastly,

the plaintiff claims that the hearing judge abused his

discretion by failing to provide a written decision with

specific findings of fact. A plaintiff who seeks a restraining

order under G. L. c. 209A, whether the initial, ex parte order,

3 As we noted earlier, at the August 28 hearing the original
judge was not available to continue the hearing. The
defendant's attorney voiced her concern that the interpreter was
not physically present and that it had been difficult at the
first hearing to go forward with an interpreter who was on Zoom.
When the hearing judge ruled that the hearing would proceed
regardless, neither the plaintiff nor the defendant objected.
The defendant's attorney did object to the hearing judge's
termination of cross-examination of the plaintiff, stating that
there were more grounds she (counsel) intended to cover. When
the hearing judge responded that he would hear arguments whether
the plaintiff had met her burden of proof and then take the case
under advisement, the plaintiff did not object or request that
she be allowed to conduct redirect examination.

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or its extension, carries the burden of proving by a

preponderance of the evidence that she is suffering from abuse.

See Frizado, 420 Mass. at 596. "Abuse" is defined as, inter

alia, "placing another in fear of imminent serious physical

harm." G. L. c. 209A, § 1. We review the decision to grant or

deny a 209A order "for an abuse of discretion or other error of

law." Latoya L. v. Kai K., 104 Mass. App. Ct. 173, 177 (2024).

See Idris I. v. Hazel H., 100 Mass. App. Ct. 784, 787 (2022).

"[W]here we are able to discern a reasonable basis for the order

in the judge's rulings and order, no specific findings are

required." G.B. v. C.A., 94 Mass. App. Ct. 389, 396 (2018).

Although the hearing judge did not make specific findings

of fact, he issued a written decision that stated the following:

"Based upon the evidence offered at the 209A hearing on August

28, 2023, I find that the plaintiff has failed to meet the

required burden of proof. I do not find the claim of past

sexual abuse between 2011 and 2015 or the more recent alleged

threats has been established by a preponderance of the

evidence." The hearing judge was in the best position to assess

the credibility and demeanor of the witness and consider the

parties' relationship. The judge took into consideration the

plaintiff's affidavit in support of the ex parte order, the 2022

police report in which the plaintiff reported that the defendant

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had sexually abused her and threatened her, as well as her

testimony at the hearing. On considering this evidence, the

hearing judge could reasonably have found that the plaintiff did

not satisfy her burden of proving that she was in fear of

imminent serious physical harm, given that the alleged sexual

assaults occurred over eight years prior to the hearing and her

claim that the defendant threatened her was based solely on

unreliable hearsay. Because there was a reasonable basis for

the judge's rulings and order, specific written findings of fact

were not required.

Order denying G. L. c. 209A
order affirmed.

By the Court (Blake, C.J.,
Shin & Walsh, JJ.4),

Clerk

Entered: July 1, 2025.

4 The panelists are listed in order of seniority.

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