D.C. v. P.N.

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-384

D.C.

vs.

P.N.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from an order of a judge of the

District Court denying her request to further extend a G. L.

c. 209A abuse prevention order (209A order) against the

defendant. She argues first that the judge abused her

discretion by applying an incorrect legal standard at the

extension hearing. Second, she argues the judge improperly

predicated her decision on a personal philosophy against

permanent 209A orders. Because we agree with the plaintiff's

first argument, we issued an order on February 19, 2025,

reversing the judge's termination order, reinstating the 209A

order, and remanding for further proceedings. This memorandum

and order states the reasons for our prior order.
Discussion. The facts and circumstances pertaining to the

extension hearing are well known to the parties and will be

repeated here only as necessary.

"We review the extension of a c. 209A order 'for an abuse

of discretion or other error of law.'" Latoya L. v. Kai K., 104

Mass. App. Ct. 173, 177 (2024), quoting Constance C. v. Raymond

R., 101 Mass. App. Ct. 390, 394 (2022). "[W]e will not

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

however, scrutinize without deference the propriety of the legal

criteria employed by the trial judge and the manner in which

those criteria were applied to the facts." Calliope C. v. Yanni

Y., 103 Mass. App. Ct. 722, 725 (2024), quoting Commonwealth v.

Boucher, 438 Mass. 274, 276 (2002).

1. Incorrect standard. The plaintiff first argues that

the judge applied the incorrect standard in determining whether

to extend the 209A order. The inquiry at a c. 209A extension

hearing is "whether the plaintiff has shown by a preponderance

of the evidence that an extension of the order is necessary to

protect her from the likelihood of 'abuse' as defined in G. L.

c. 209A, § 1." Vera V. v. Seymour S., 98 Mass. App. Ct. 315,

317 (2020), quoting Iamele v. Asselin, 444 Mass. 734, 739

(2005). See also Rauseo v. Rauseo, 50 Mass. App. Ct. 911, 913

(2001) ("At a hearing on the plaintiff's request for an

extension of an order . . . the plaintiff is not required to re-

2
establish facts sufficient to support that initial grant of an

abuse prevention order"). If a plaintiff seeks an order based

on having been subject to physical harm, as is the case here,

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

reasonably 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." Callahan v. Callahan, 85 Mass. App. Ct. 369, 374

(2014). See Latoya L., 104 Mass. App. Ct. at 178 ("the only

question for the judge was whether there was a continued need

for the order to address the prior abuse" where plaintiff was

victim of physical and sexual abuse).

Here, the plaintiff obtained the initial ex parte order

based on her affidavits alleging that the defendant strangled

her in January 2020, which he pleaded guilty to, 1 and that the

defendant had also physically and sexually abused the plaintiff

in the past. 2 There is no indication from the transcript of the

extension hearing at issue that the judge considered whether the

plaintiff met her burden of establishing a continued need for

1 At the hearing, defendant's counsel confirmed that the
defendant pleaded guilty to strangling the plaintiff.

2 The plaintiff obtained the initial order in March 2023.
It was extended four times before the hearing at issue which
occurred on January 31, 2024.

3
the order based on this prior physical and sexual abuse before

the judge agreed with defendant's counsel that the order should

be terminated. 3 See Latoya L., 104 Mass. App. Ct. at 178.

Rather, the judge's primary concern appeared to be the parties'

children's level of communication with the defendant. This was

improper. In Moreno v. Naranjo, 465 Mass. 1001, 1002-1003

(2013), the Supreme Judicial Court determined the judge abused

her discretion where, "[i]t [was] abundantly clear from the

transcript that concern for [defendant]'s ability to visit with

the child was the primary reason that the extension was limited

to six months." The court made clear that "[a] defendant's

visitation rights are simply not an appropriate consideration in

a c. 209A extension hearing." Id. at 1002.

The judge committed a similar error here. During the

c. 209A extension hearing, defendant's counsel presented the

judge with a guardian ad litem report (GAL report) issued by the

Probate and Family Court in 2021. As the judge reviewed the

3 At the extension hearing, after both parties were sworn
in, plaintiff's attorney began by volunteering background
information about the procedural history of the present case and
a separate matter in the Probate and Family Court between the
parties. The judge then listened to each attorney discuss
whether to extend the 209A order; the attorneys' arguments
dominated the hearing. After hearing from both parties'
counsel, but without hearing testimony from either the plaintiff
or the defendant, the judge terminated the order and concluded
the hearing.

4
report, over the objection of the plaintiff, 4 defendant's counsel

explained the report demonstrates "parental alienation by the

[plaintiff]" and includes "a strong recommendation of increased

parenting time for the [defendant]." In response, the judge

remarked,

"I tend to agree with [defendant's counsel] that it . . .
makes sense to terminate the restraining order; but I am
concerned to do that under the fact that these people have
such animosity towards each other. . . . I'm concerned
about opening up more communication is . . . not going to
be helpful, especially as they come up to trial."

The judge proceeded to ask about the circumstances and frequency

of the defendant's current contact with the children. Then,

after defendant's counsel argued there was no need to extend the

209A order, the judge stated, "I agree . . . my concern is more

about [the children and defendant] having increased

communication." After hearing from the plaintiff's counsel

briefly, but not hearing any evidence regarding the plaintiff's

continued fear of the defendant, the judge terminated the order.

In addition to improperly shifting the focus from the

plaintiff's continued fear based on the prior abuse to the

inconvenience the order placed on the defendant, the judge erred

4 The plaintiff objected to the judge's consideration of the
report, arguing it was out-of-date and "not particularly
relevant to . . . [plaintiff]'s need for [the 209A] order." See
Moreno, 465 Mass. at 1001, 1003 (abuse of discretion to extend
restraining order "for six months, rather than a full year"
based on separate custody proceedings).

5
in considering the plaintiff's animosity toward the defendant as

a factor in deciding whether to extend the 209A order. The

victim's animosity toward her aggressor is not an appropriate

consideration in c. 209A extension hearings because "[t]he well-

established purpose of [c. 209A] is to protect victims of

domestic violence." Moreno, 465 Mass. at 1002.

The defendant argues the judge did not abuse her discretion

in terminating the order because the plaintiff submitted no

evidence at the hearing. We disagree. In c. 209A abuse

prevention order proceedings, "certain minimum standards of

fairness must be observed." S.T. v. E.M., 80 Mass. App. Ct.

423, 429 (2011). Among them, "judges should not issue, or

vacate, any part of an abuse prevention order, over objection,

without hearing the evidence and giving the parties an

opportunity to respond." Id. at 429-430. "While a judge surely

may . . . interrupt an argument or a witness examination that

has become repetitious, [she] should not terminate a hearing

without ensuring that [she] has heard all the relevant and

admissible evidence once." Id. at 430-431.

Here, the judge failed to consider any evidence from the

plaintiff as to her need for the extension of the order before

terminating the order and concluding the hearing. 5 See C.O. v.

5 While there were two affidavits from the plaintiff in the
record supporting the issuance of the order, neither addressed

6
M.M., 442 Mass. 648, 657 (2004) ("The fact that defense counsel

was permitted to argue on behalf of his client does not

substitute for the opportunity to present evidence"). There was

no indication the plaintiff waived the right to present

evidence. In fact, the hearing started with the plaintiff being

sworn in to testify and ended with the plaintiff attempting to

address the judge. The judge declined to hear from the

plaintiff, and the hearing was summarily concluded. From this

record, we are unable to conclude the judge made "a discerning

appraisal of the continued need for an abuse prevention order to

protect the plaintiff from the impact of the violence already

inflicted." Callahan, 85 Mass. App. Ct. at 374. See Latoya L.,

104 Mass. App. Ct. at 178 (abuse of discretion where judge "made

no finding" and "record does not reflect [judge] focused on"

question whether plaintiff had continued fear of defendant from

prior abuse). Thus, the judge abused her discretion in

terminating the order.

2. Improper presumption. The plaintiff points to certain

statements the judge made to argue that the judge abused her

discretion by acting under a presumption that 209A orders cannot

be permanent. We pass over the issue without parsing the

transcript other than to emphasize that "it is error to refuse,

the plaintiff's continued fear of the defendant at the time of
the extension hearing.

7
on the basis of personal preference or philosophy, a request to

give consideration to a permanent order permitted by G. L.

c. 209A." Lonergan-Gillen v. Gillen, 57 Mass. App. Ct. 746, 749

(2003).

Conclusion. As previously noted, the termination order

dated January 31, 2024, has been reversed, and the case remanded

to the District Court for further proceedings in accordance with

this decision. 6

So ordered.

By the Court (Henry, Smyth &
Toone, JJ. 7),

Clerk

Entered: April 28, 2025.

6 Because we reversed the judge's termination order, we
reject the defendant's request for attorney's fees and costs
stemming from his claim that the plaintiff's appeal was
frivolous. See Mass. R. A. P. 25, as appearing in 481 Mass.
1654 (2019).

7 The panelists are listed in order of seniority.

8