S.M. v. R.M.

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

23-P-282

S.M.

vs.

R.M.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, R.M., appeals from the extension of an abuse

prevention order issued pursuant to G. L. c. 209A, § 3. The

plaintiff, S.M., is the defendant's wife, and the two are amid

divorce proceedings and a custody battle over their minor child.

The plaintiff originally sought an abuse prevention order

against the defendant in the Probate and Family Court on January

10, 2022, but her request was denied. On September 21, 2022,

after new allegations emerged, a District Court judge issued an

abuse prevention order against the defendant ex parte. After a

hearing on October 4, 2022, the order was extended for one year.

The judge subsequently denied the defendant's motion for

reconsideration and to vacate the order.
On appeal, the defendant claims that the judge erred or

abused his discretion in extending the abuse prevention order

because: (1) principles of res judicata barred the judge from

considering the plaintiff's affidavit filed in support of the

January 2022 request for an abuse prevention order; (2) the

plaintiff failed to prove by a preponderance of the evidence

that she was reasonably in fear of imminent, serious physical

harm; and (3) the defendant was denied a meaningful opportunity

to be heard. We affirm.

Discussion. A decision to extend an abuse prevention order

is reviewed "for an abuse of discretion or other error of law."

Constance C. v. Raymond R., 101 Mass. App. Ct. 390, 394 (2022),

quoting E.C.O. v. Compton, 464 Mass. 558, 562 (2013). "[A]

judge's discretionary decision constitutes an abuse of

discretion where [the reviewing court] conclude[s] 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" (quotation and citation

omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

As we review the judge's decision allowing the plaintiff's

request for an extension of her protective order, "we will not

substitute our judgment for that of the trier of fact. We do,

however, scrutinize without deference the propriety of the legal

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criteria employed by the trial judge and the manner in which

those criteria were applied to the facts" (quotation and

citation omitted). Iamele v. Asselin, 444 Mass. 734, 741

(2005). "We accord the credibility determinations of the judge

who 'heard the testimony of the parties . . . [and] observed

their demeanor' . . . the utmost deference." Ginsberg v.

Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006), quoting Pike v.

Maguire, 47 Mass. App. Ct. 929, 929 (1999).

The defendant first claims that the judge erred in relying

on the allegations of abuse contained in the plaintiff's January

2022 affidavit because a Probate and Family Court judge

previously denied the request for an abuse prevention order

based on that affidavit, and principles of res judicata prevent

the plaintiff from relitigating those claims of abuse. We

disagree.

"The term 'res judicata' includes both claim preclusion,

also known as true res judicata, and issue preclusion,

traditionally known as collateral estoppel." Mancuso v.

Kinchla, 60 Mass. App. Ct. 558, 564 (2004). "Claim preclusion

makes a valid, final judgment conclusive on the parties and

their privies, and prevents relitigation of all matters that

were or could have been adjudicated in the action." Kobrin v.

Board of Registration in Med., 444 Mass. 837, 843 (2005),

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quoting O'Neill v. City Manager of Cambridge, 428 Mass. 257, 259

(1998). "The invocation of claim preclusion requires three

elements: '(1) the identity or privity of the parties to the

present and prior actions, (2) identity of the cause of action,

and (3) prior final judgment on the merits.'" Kobrin, supra,

quoting DaLuz v. Department of Correction, 434 Mass. 40, 45

(2001). On the other hand, collateral estoppel "provides that

'[w]hen an issue of fact or law is actually litigated and

determined by a valid and final judgment, and the determination

is essential to the judgment, the determination is conclusive in

a subsequent action between the parties, whether on the same or

a different claim.'" McLaughlin v. Lowell, 84 Mass. App. Ct.

45, 56 (2013), quoting Alba v. Raytheon Co., 441 Mass. 836, 841

(2004). "To consider the applicability of issue preclusion, 'we

look to the record to see what was actually litigated' in the

prior proceedings." G.B. v. C.A., 94 Mass. App. Ct. 389, 397

(2018), quoting Kobrin, supra at 844.

Here, the defendant's assertions of both claim and issue

preclusion fail for lack of a full record demonstrating that the

Probate and Family Court issued a final judgment. The

defendant, as the appellant, had the burden of providing us with

a complete record, see Mass. R. A. P. 18 (a), as appearing in

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481 Mass. 1637 (2019), and he has failed to do so here.1 The

transcript for the extension hearing reflects confusion amongst

the parties themselves as to what happened in the Probate and

Family Court. From the limited information available, the

District Court clerk was able to gather that the plaintiff filed

an affidavit and complaint for protection from abuse on January

10, 2022; the order was not issued at the ex parte hearing; the

parties were directed to appear for a scheduled hearing, which

did not occur; and the docket reflects that the complaint was

simply "denied." Thus, on the record before us, we cannot

determine that a final judgment entered. Moreover, we are

unable to ascertain what was actually litigated in the Probate

and Family Court, or the basis of the judge's denial of the

request for an abuse prevention order. See G.B., 94 Mass. App.

Ct. at 397 n.13 (unable to determine reasons judges declined to

issue requested stay away orders without hearing transcripts).

Accordingly, res judicata does not apply here.

The defendant next claims that the plaintiff failed to meet

her burden of establishing sufficient evidence warranting

extension of the order. He submits that because the judge found

the evidence related to the allegations contained in the

1 The only document concerning the Probate and Family Court
matter that is contained in the record before us is the
plaintiff's typed affidavit.

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September 2022 affidavit insufficient, standing alone, to

justify the order; the judge impermissibly relied on evidence of

past abuse; and the plaintiff was impeached numerous times

during her testimony, the judge abused his discretion or

otherwise erred in extending the order.

"Our cases are clear that '[i]n evaluating whether a

plaintiff has met her burden, a judge must consider the totality

of the circumstances of the parties' relationship.'" G.B., 94

Mass. App. Ct. 389, 393 (2018), quoting Iamele, supra at 740.

"Indeed, in evaluating whether an initial 209A order or its

extension should issue, the judge must 'examine the words and

conduct in the context of the entire history of the parties'

hostile relationship'" (quotation omitted). G.B., supra at 393-

394, quoting Vittone v. Clairmont, 64 Mass. App. Ct. 479, 487

(2005). " Although a person seeking an abuse prevention order

(and extension) based on 'fear of imminent serious physical

harm' must always show that he or she is currently in fear of

imminent serious physical harm, and that such fear is

reasonable," the same is not required of a person seeking an

order, or an extension of such an order, "based on having

already been subject to physical harm." Callahan v. Callahan,

85 Mass. App. Ct. 369, 374 (2014). "In that circumstance, the

'abuse' is the physical harm caused, and a judge may reasonably

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conclude that there is a continued need for the order because

the damage resulting from that physical harm affects the victim

even when further physical attack is not reasonably imminent."

Id., citing Vittone, supra at 489 (some wounds so traumatic that

passage of time alone does not mitigate victim's fear of

perpetrator).

Contrary to the defendant's claim, the judge did not solely

rely on the January 2022 affidavit, but instead considered the

totality of the circumstances, as he was required to do. The

judge explicitly credited the plaintiff's testimony of past

physical abuse and ongoing hostility in connection with child

custody and divorce proceedings, and the September 2022

affidavit, in addition to the plaintiff's testimony, described

that ongoing hostility.2 We see no reason to disturb the judge's

credibility determinations, even considering impeachment

testimony. See Ginsberg, 67 Mass. App. Ct. at 140 n.3.

Therefore, the judge could have found that the plaintiff met her

burden of establishing that extension of the order was necessary

2 For this reason, the defendant's claim that the judge
misapplied Iamele, 444 Mass. at 739-740, is without merit. In
addition, in his denial of the defendant's motion to reconsider,
the judge held that he was "satisfied that the plaintiff's
description of past physical abuse, coupled with the ongoing
hostility in connection with child custody and divorce
proceedings warranted extension of the order."

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to protect her from the impact of family violence. See

Callahan, 85 Mass. App. Ct. at 375.

Finally, the defendant claims that he did not have a

meaningful opportunity to oppose the allegations contained in

the January 2022 affidavit because he was only granted fourteen

minutes to review it, relying on Idris I. v. Hazel H., 100 Mass.

App. Ct. 784 (2022). However, the defendant's reliance is

misplaced. In Idris I., the judge had before her evidence,

which the defendant did not have and had not seen, and the

defendant only became aware of such evidence once the plaintiff

referred to certain exhibits in response to a question posed by

the judge. Id. at 789. Without responding to the defendant's

objections, the judge allowed the plaintiff's attorney to

continue his direct examination of the plaintiff. Id. This

court concluded that the judge improperly considered evidence

that the defendant had not seen at all, and thus was completely

unable to challenge. Id. at 789-790. Here, by contrast, the

defendant was granted time to review the affidavit prior to the

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beginning of the plaintiff's testimony, which sufficiently

provided him a meaningful opportunity to challenge the evidence.

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

Order denying motion for
reconsideration and to
vacate G. L. c. 209A order
affirmed.

By the Court (Meade,
Hershfang & Toone, JJ.3),

Clerk

Entered: October 11, 2024.

3 The panelists are listed in order of seniority.

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