J.C. v. J.C.

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-1230

J.C.

vs.

J.C.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from orders of a District Court judge

(motion judge) denying his motion to terminate a G. L. c. 209A

abuse prevention order (order) issued against him in favor of

the plaintiff and denying his motion for reconsideration. We

affirm.

Background. The procedural history of this matter, which

extends back to 2013, is not disputed. We summarize the

relevant facts as set forth in the motion judge's detailed

findings and order on the motion to terminate.

The parties married in 2009 and filed for divorce in 2010,

following the birth of their twin children. A District Court

judge first issued the order in 2013 while their divorce was
pending, based on the defendant's physical and verbal abuse of

the plaintiff, his controlling behavior, and his quick temper.

The judge also found that the defendant possessed a significant

number of weapons, contributing to the plaintiff's fear. One

year later the order was extended for five years, and in 2019 it

was made permanent, both times after two-party evidentiary

hearings.

This appeal concerns the denial of the defendant's sixth

motion to terminate the order, filed in 2023. Following an

evidentiary hearing, at which both parties were present, the

motion judge denied the defendant's motion. The defendant

timely filed a motion for reconsideration, which the motion

judge also denied.

Discussion. 1. Motion to terminate. The crux of the

defendant's argument on appeal is that as a result of several

changes in circumstances, the plaintiff no longer has reason to

fear him, and the order is no longer needed. In seeking to

terminate the order, the defendant was required to show by clear

and convincing evidence that, first, there had been "a

significant change in circumstances since the order was issued";

and second, "under the totality of the circumstances, the

plaintiff, without the protection of an order of abuse

prevention, would no longer reasonably fear imminent serious

physical harm from the defendant." MacDonald v. Caruso, 467

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Mass. 382, 390-391 (2014). This standard is intentionally

demanding.

"Where a defendant has been found over an extended period
of time to pose this level of danger to a plaintiff, we
conclude that the risk of error should be on the side of
the plaintiff and that something more than proof by a
preponderance of the evidence is necessary to ensure the
plaintiff's safety."

Id. at 390. The denial of a motion to terminate a permanent

abuse prevention order is reviewed for an abuse of discretion.

See id. at 383. "We therefore ask whether 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" (quotations omitted). L.L. v. M.M., 95

Mass. App. Ct. 18, 22 (2019), quoting L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).

The defendant contends a series of changes in circumstances

supported his motion to terminate the order. Primarily, the

defendant argues that he had "moved on with his life" since the

issuance of the order, in that he had been remarried for over

seven years and had not exhibited any violent or abusive

behaviors, as evidenced by the results of an elective

psychiatric evaluation, an affidavit from his current wife, and

the fact that he had not accumulated any arrests, convictions

involving domestic abuse, or other restraining orders since the

issuance of the order. In addition, he planned to relocate

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permanently with his current wife and their children from New

Hampshire to Florida, as demonstrated by loan documents for

their new home.

To be sure, remarriage and relocation "may support a

finding of a significant change of circumstances." MacDonald,

467 Mass. at 391. See also L.L., 95 Mass. App. Ct. at 23.

Although these factors were not sufficient in either MacDonald

or L.L. to constitute a significant change in circumstances, the

defendant argues that his case is distinguishable. For example,

the defendant points to evidence that he had no recent

encounters with the criminal justice system and the affidavit

from his current wife attesting that he is not physically

abusive and "has long moved on from his relationship with" the

plaintiff. Contrast MacDonald, supra at 393 (defendant did not

submit police affidavit or other "records to show the absence of

arrests or convictions or other restraining orders"); L.L.,

supra ("while the defendant did submit criminal record

information," he submitted "no affidavit or testimony from his

current wife"). The defendant also provided a psychiatric

evaluation indicating that he does not have any mental health

conditions. The defendant contends he has therefore

demonstrated "not only that he has moved on to another

relationship but also that he has 'moved on' from his history of

domestic abuse and retaliation." MacDonald, supra.

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It is clear that the defendant has striven to conform his

motion to this case law. However, the Supreme Judicial Court

has specifically declined to "adopt any specific checklist of

factors, recognizing that the relevant factors will differ

depending on the circumstances of the case, and that the

evaluation of risk must rest on the totality of the

circumstances." MacDonald, 467 Mass. at 393 n.9. On a holistic

view of the record, we are not persuaded that the motion judge

abused his discretion when he denied the defendant's motion to

terminate the order. Although the defendant's psychiatric

evaluation is a positive indicator of his current disposition,

it does not demonstrate the same accountability or repentance as

"the successful completion of mental health, anger management,

or substance abuse counselling." See id.

Regarding his relocation, because "the abuse prevention

order had issued when the plaintiff and defendant worked or

resided in close proximity to each other," the defendant argues

"the additional distance between the defendant's and the

plaintiff's residences" following his move to Florida is more

likely to "significantly diminish the reasonable fear of

imminent serious physical harm." MacDonald, 467 Mass. at 392.

However, because the defendant did not provide sufficient

evidence demonstrating when he planned to relocate to Florida,

the motion judge only "credit[ed] so much of the defendant's

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testimony that he still resides in the state of New Hampshire."

Given this lack of proof, the distance factor ultimately offered

no support for the defendant's motion.

Significantly in this case, unlike in MacDonald, "here the

plaintiff did appear to oppose the motion and did so

strenuously. . . . [T]hat opposition, and her continued fear for

her safety, come through clearly." L.L., 95 Mass. App. Ct. at

24. In particular, the plaintiff's testimony suggested the

alleged changed circumstances would do little to allay her fears

of future harm; she testified specifically that "the thought of

[the defendant] being able to send me a text message carte

blanche whenever he has the whim, scares me to death." Text

messages may be sent to Massachusetts as easily from Florida as

from New Hampshire. See MacDonald, 467 Mass. at 392 (even if it

would require more expense and effort, distance "by itself does

not mean that he could not engage in the same conduct from afar

that triggered issuance of the initial order"). Distance is

therefore unlikely to diminish the plaintiff's fear -- a fear

that is objectively reasonable, given the defendant's history of

physical abuse and the necessity for ongoing communication

between the parties regarding their children. See Yahna Y. v.

Sylvester S., 97 Mass. App. Ct. 184, 187 (2020), quoting

Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014) ("when a

plaintiff has suffered physical abuse, a judge may reasonably

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conclude that a c. 209A order is necessary 'because the damage

resulting from that physical harm affects the victim even when

further physical attack is not reasonably imminent'"); Pike v.

Maguire, 47 Mass. App. Ct. 929, 930 (1999) (plaintiff's fear of

abuse was reasonable "in light of the defendant's past abusive

acts giving rise to the prior restraining orders [and] the

notoriously volatile nature of child custody and visitation

battles"). Taking into account the totality of the

circumstances -- including not just the changes the defendant

emphasized in his motion, but the parties' history and the

plaintiff's testimony -- the motion judge's denial of the

defendant's motion to vacate the permanent order was within the

range of reasonable alternatives.

2. Motion for reconsideration. We discern no abuse of

discretion in the motion judge's denial of the defendant's

motion for reconsideration. A motion for reconsideration

"should specify (1) 'changed circumstances' . . . or (2) a

particular and demonstrable error in the original ruling or

decision." Audubon Hill S. Condominium Ass'n v. Community Ass'n

Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 470 (2012).

The denial of a motion for reconsideration is reviewed for an

abuse of discretion. See Piedra v. Mercy Hosp., Inc., 39 Mass.

App. Ct. 184, 188 (1995).

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The defendant asserted in his motion that the motion judge

erred in refusing to credit his testimony at the evidentiary

hearing that the family planned to relocate to Florida. To

support the motion, the defendant attached his wife's Florida

driver's license, a Florida vehicle registration and insurance

card bearing his and his wife's names, and receipts for moving

expenses, showing the family moved three days after the

evidentiary hearing took place. The defendant also argued that

the motion judge "misconstrued" some of his exhibits,

"incorrectly credited" portions of the plaintiff's testimony

regarding her fear of future abuse, and abused his discretion in

denying the defendant's motion. As to these points, the

defendant offered no new evidence.

The standard for granting a motion for reconsideration is

stringent. See Peterson v. Hopson, 306 Mass. 597, 603 (1940)

("A judge should hesitate to undo his own work"). "Except in

extraordinary circumstances, allowing 'do-overs' . . . designed

to clarify muddled hearing testimony undermines the integrity of

the process . . . ." Commonwealth v. Pagan, 73 Mass. App. Ct.

369, 375 (2008). In his motion for reconsideration, the

defendant advanced the same argument he had before. "After the

denial of one motion, a second motion based on the same grounds

need not be entertained." Peterson, supra at 600. See

Commonwealth v. Demirtshyan, 87 Mass. App. Ct. 737, 741 n.8

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(2015) ("A motion that simply requests that a judge revisit a

decision made previously under the guise of exercising

discretion is not a genuine motion for reconsideration").

The motion for reconsideration was supported with better

evidence regarding the defendant's recent relocation -- some of

which, such as the auto transport receipt, had been available at

the time of the evidentiary hearing. But "[t]here is no error

in the denial of a motion that merely seeks, as this one did, a

'second bite at the apple.'" Liberty Sq. Dev. Trust v.

Worcester, 441 Mass. 605, 611 (2004).

In any case, better evidence of the defendant's plan to

relocate did not necessitate reconsideration of the motion

judge's ultimate determination. Unlike his second marriage, the

defendant's relocation to Florida was still fresh at the time he

made the motion and therefore considerably less helpful to the

defendant's case. See L.L., 95 Mass. App. Ct. at 20-21, 25

(judge did not abuse discretion in denying motion to terminate

209A order, even where "the defendant ha[d] shown that he ha[d]

moved away" six years before moving to terminate). Because the

defendant's motion for reconsideration alleged only very

slightly changed circumstances, it was not an abuse of

discretion for the motion judge to deny it. See Commonwealth v.

Clark, 67 Mass. App. Ct. 832, 834 (2006) (appropriate motion for

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reconsideration is "one that is not a mere rehash of prior

arguments").

3. Constitutional claims. The defendant also argues his

due process rights were violated at the August 20, 2019,

extension hearing, at which the order was made permanent, as

well as at the July 11, 2023, evidentiary hearing on the motion

at issue in this case. As a threshold matter, any claims

arising from the 2019 extension hearing are not properly before

us. The defendant has already had the opportunity to raise

these claims on direct appeal. See J.C. v. J.C., 99 Mass. App.

Ct. 1117 (2021). Whether he failed to raise the claims then, or

the panel concluded the claims were meritless, he is not

entitled to relitigate them now.

As to the 2023 evidentiary hearing, the defendant argues

the motion judge infringed his right to due process by

permitting the continuation of an "inequitable" order and by

denying him the opportunity to cross-examine the plaintiff and

present testimonial evidence at the evidentiary hearing. A

constitutional claim presents a question of law, which we review

de novo. See Commonwealth v. McGhee, 472 Mass. 405, 412 (2015).

"Where a judgment is void for failure to conform to the

requirements of due process of law, we must vacate it."

Adoption of Patty, 489 Mass. 630, 637 (2022).

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However, the defendant's due process claims are without

merit. First, for the reasons discussed herein, the

continuation of the order was not inequitable. See MacDonald,

467 Mass. at 392 ("Where a defendant has failed to meet his

burden to terminate an abuse prevention order, the order shall

not be terminated, regardless how onerous the collateral

consequences, because the only relevant issue is the safety of

the plaintiff"). Additionally, the defendant testified

extensively and introduced twelve exhibits at the evidentiary

hearing, including an affidavit from his current wife; at no

point was he denied a request to cross-examine the plaintiff or

to call other witnesses. "The burden is on the appellant in the

first instance to furnish a record that supports his claims on

appeal. Errors that are not disclosed by the record afford no

basis for reversal" (citation omitted). Arch Med. Assocs. v.

Bartlett Health Enters., 32 Mass. App. Ct. 404, 406 (1992).

Accordingly, we decline to reverse the motion judge's orders on

these grounds.1

Conclusion. The order entered August 2, 2023, denying the

motion to terminate (docketed as the denial of a motion "to

1 We do not agree with the plaintiff, however, that the
defendant's entire appeal should be dismissed for failure to
comply with this court's filing procedures. The record is
adequate for appellate review.

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vacate") is affirmed. The order entered October 2, 2023,

denying the motion for reconsideration, is affirmed.2

So ordered.

By the Court (Massing,
Sacks & Allen, JJ.3),

Clerk

Entered: December 16, 2025.

2 Although we are not convinced by the defendant's arguments
on appeal, "[u]npersuasive arguments do not necessarily render
an appeal frivolous." Avery v. Steele, 414 Mass. 450, 455
(1993). Accordingly, we deny the plaintiff's request for
attorney's fees.

3 The panelists are listed in order of seniority.

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