A.D. v. M.D.

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

22-P-358

A.D.

vs.

M.D.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On March 11, 2020, the same day she served the defendant

with her January 2020 complaint for divorce, the plaintiff

obtained an ex parte abuse prevention order under G. L. c. 209A

from the Probate and Family Court with a return date of March

23, 2020. Beginning on March 17, 2020, the Commonwealth's court

houses were closed to the public, and Probate and Family Court

Standing Order 2-20 (2020) (Standing Order 2-20), requiring

virtual hearings by telephone or videoconference "[w]henever

practicable," became effective.1 The 209A order was extended

several times following hearings that were not in person because

of the standing order, and the defendant appeals from two of

1 This standing order instituted temporary changes in court
procedure due to the COVID-19 pandemic. See Christie v.
Commonwealth, 484 Mass. 397, 399 (2020).
those extension orders: one that followed a nonevidentiary

telephonic hearing on August 27, 2020 (August 2020 extension),

and one that entered on February 22, 2021, after an evidentiary

hearing over Zoom (February 2021 extension).

On appeal, the defendant claims that (1) the August 2020

extension order violated his due process rights, and further,

the order was not supported by the evidence because it was based

solely on the representations of plaintiff's counsel; (2) the

evidence in support of the February 2021 extension order did not

show a threat to the parties' two young children such that they

should be included in that order; and (3) neither extension

order should have issued "where the circumstances were simply

situational and where any fear of imminent physical harm no

longer existed." The plaintiff counters that the appeal must be

dismissed because the defendant's notices of appeal were filed

before the extension orders were docketed, and even if the

appeal is properly here, the 209A order was properly extended in

August 2020 and February 2021. We affirm, giving a detailed

recitation of the facts to frame our analysis.

Background. 1. Initial order. A Probate and Family Court

judge issued the ex parte order after a March 11, 2020 hearing

at which the plaintiff appeared but for which we have no

transcript.

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The ex parte order prohibited the defendant from contacting

the plaintiff or the children, from coming within one hundred

yards of the plaintiff and the children, and required the

defendant to stay away from the marital home and the children's

schools. On March 23, 2020, the parties appeared by phone

before a second Probate and Family Court judge, with counsel,

for the two-party hearing on the plaintiff's request for an

extension.

We do not have a transcript of the March 23 hearing, or the

benefit of findings by the second judge. When extending the

order to May 18, 2020, the same date on which he scheduled a

review hearing in the divorce, the judge stated that it was

modified "per court order of today's date attached hereto and

incorporated by reference." That order, in turn, was the

parties' stipulation to a modification (1) to permit limited

contact and communication between the defendant and plaintiff,

(2) to allow the defendant to come within one hundred yards of

the plaintiff to pick up and drop off the children, and (3) to

allow the defendant contact and supervised parenting time with

the children. On May 20, 2020, nunc pro tunc to May 18, 2020,

the order was extended by the second judge, without modification

and without the parties' appearing, to May 27, 2020. The review

hearing in the divorce was also rescheduled to that date.

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On May 27, 2020, the parties appeared by phone before the

second judge, with counsel, for an evidentiary hearing on the

plaintiff's request for a one-year extension. Once again, we do

not have a transcript of the hearing or the benefit of findings

by the judge. After the May 27 hearing, the second judge

extended the order "without modification" for three months,

rather than one year, to August 27, 2020, the same day for which

he scheduled a pretrial conference in the divorce proceeding.

2. August 2020 extension. On August 27, 2020, the parties

appeared before the second judge for a third time, with counsel

and over the phone, for the return date of the 209A order and

the pretrial conference in the divorce proceeding. After the

parties were sworn, the plaintiff's counsel requested a six-

month extension of the 209A order, representing that "since the

entry –- the extension of the order back in May, the husband

still is, from the wife's perspective, exhibiting those same

behaviors that he had during the marriage." Counsel continued,

"And I'll give you some examples, and my client can
certainly testify. I understand that this isn't an
evidentiary hearing, but she's happy to answer some brief
questions should the Court require.

"You know, she –- something as simple as trying to select a
real estate agent to list the [marital] home. Husband
tried to just control every situation. You know,
objections to who the wife feels comfortable using.

"Something as simple as there was an issue with the
parties' underground sprinkler system, and there were some
15 messages to the wife about it.

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"So this sort of, you know, need for the husband to control
every situation, his lack of patience, his excessive
behavior has continued, and that makes the wife think
nothing's changed since what she dealt with during the
marriage."

The defendant's attorney asked to question the plaintiff,

but the request was denied, with the second judge saying,

"[W]e're not having an evidentiary hearing today. . . . I

believe we had one back in May." Defense counsel then argued

that there was no longer a need for the order because, among

other things, there had been "[n]o problems with the children

with regards to school, medical issues"; no violations of the

order by the defendant; and "no threatening behavior

whatsoever." While he agreed there had been "some disagreements

about issues on emails," the defendant's attorney felt "that all

the communications I represent have been cordial between the

parties." Defense counsel further represented that the

defendant was enjoying quality time with the children, was in

counseling, was agreeable to a parenting coach, and intended to

continue being "very cautious" and "reasonable and accommodating

to" the plaintiff, as he had been by, for example, not watching

the dog at her request without having the order amended and by

staying "as far back as he could" at an outside dance recital on

a hot day so the plaintiff and the children could be in the

shade. Defense counsel suggested that "it's now time for the

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parties to focus on the well-being of the children and work

toward an amicable resolution to these ongoing divorce and

custody proceedings," and that the defendant was "amenable to

further temporary orders from this Court that include reasonable

ongoing limitations on contact and communications with the

parties." In fact, on August 15, 2020, the parties had agreed

to such limitations, by stipulating that the 209A order could be

modified to allow the defendant to (1) attend more of the

children's events, provided he gave the plaintiff twenty-four

hours' notice, and (2) meet the plaintiff at a mutually agreed

location to exchange the dog.

The second judge modified the order "per [this]

stipulation" and extended it for six months as the plaintiff had

requested. A contemporaneous docket entry stated, "Order

Issued." The defendant filed a notice of appeal of the August

2020 extension order that was stamped "received" by the

register's office on September 8, 2020, but which was not

docketed on that date.

3. February 2021 extension.2 On February 22, 2021, the

parties and their attorneys appeared by Zoom before a third

2 There was a modification of the order in the interim, which
entered after a November 5, 2020, telephonic pretrial conference
before the second judge in the divorce proceeding. We do not
have a transcript of that hearing, but, after it, the 209A order
was modified pursuant to another stipulation of the parties to
allow the defendant to communicate with the plaintiff about

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Probate and Family Court judge for the return date of the 209A

order. The plaintiff asked for a one-year extension. One month

earlier, the parties had signed a separation agreement, which

was introduced as an exhibit at the hearing, but was not

included in the record on appeal. Among other things, it

provided for shared legal custody of the children, increased

parenting time for the defendant with "both parties agree[ing]

to drop off the children to each other's residences," and to a

parenting coordinator to act as an "intermediary," one of

several "safety measures . . . so that the parties can minimize

their contact."

At the February 22, 2021 hearing, both parties testified.

After hearing arguments of counsel, the third judge said, "All

right, I've heard you both; I do find that the plaintiff has a

reasonable fear of harm. I am going to continue the order but

I'm not going to continue it for a year; I'm going to continue

it for six months, and I'm going to continue it with the terms

and conditions in accordance with the order submitted in

connection with the divorce." That order struck or amended the

provisions of the 209A order relating to, among other things,

matters before the parenting coordinator and regarding the sale
of the marital home; "to reduce the 100 yard distance to permit
drop off and pickups for parenting time"; and "to comport with
parenting plan in parties['] 10/15/20 stipulation and other
agreed upon changes to the parenting plan."

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custody and visitation with the children, permitted contact

between the parties for events relating to or involving the

children, and allowed the defendant to enter the marital home to

pack and remove his belongings.

The third judge's decision was reflected by a docket entry

stating, "Order Issued." On March 18, 2021, the defendant

served, and soon thereafter the plaintiff received, a notice of

appeal of the February 2021 extension order that was not

docketed on that date and bore no sign of receipt by the

register's office. On April 6, 2021, the parties' divorce

became final, though a judgment did not enter until June 24,

2021.

Effective July 12, 2021, Standing Order 2-20 was

superseded, and court operations returned to in person. See

Probate and Family Court Standing Order 1-21 (2021). In March

2022, nothing having happened on the defendant's appeals of the

August and February extension orders, the defendant filed a

motion to compel assembly of the record. On April 4, 2022, the

notice of appeal of the August 2020 extension order was docketed

along with several other pleadings and orders from 2020 and

2021, including the August 2020 and February 2021 extension

orders, and the record was assembled. Two days later, (1) the

notice of appeal of the February 2021 extension order was

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docketed by entry stating "filed 3/18/2021," and (2) the

register issued an updated notice of assembly.

Discussion. 1. Jurisdiction. We are not persuaded by the

plaintiff's claim that the appeal must be dismissed because the

defendant's notices of appeal predated the docketing of the

August and February extension orders. The two contemporaneous

docket entries "Order Issued" were sufficient to "enter" the

extension orders for the purpose of starting the time to appeal.

See Commonwealth v. Mullen, 72 Mass. App. Ct. 136, 138 (2008)

(defining "date of entry"). Those entries were not affected by

the register's re-docketing of the orders on April 4, 2022.

Because the "received" stamp on the notice of appeal of the

August extension order established that it was "filed" on

September 8, 2020, see Samuels v. SUFA Corp., 38 Mass. App. Ct.

922, 922 (1995), within the thirty-day period prescribed by

Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019),

we are satisfied that the appeal of the August 2020 extension

order is timely.

There is no similar stamp on the notice of appeal of the

February 2021 extension order, but, when it was finally

docketed, the entry indicated the document was "filed" on the

same day it was served, March 18, 2021, within thirty days of

entry of the February 2021 extension order. Thus, the appeal

from that order is also timely. We will not fault the defendant

9
or the register for court disruptions that seem to have affected

the docketing of orders and filings in this case, especially

where the plaintiff timely received the notice of appeal of the

February extension order and asks us to affirm that order on the

merits.

2. Initial order. Because "[w]e have no transcript of

what transpired" at the March 23 hearing after notice, we

"assume that it focused on the allegations contained in the

[plaintiff]'s complaint and affidavit[]," Brookline v.

Goldstein, 388 Mass. 443, 447 (1983), which were that the

defendant caused physical harm to the plaintiff and made her

engage involuntarily in sexual relations. See G. L. c. 209A,

§ 1 (a), (c) (defining "abuse" to include these acts). We will

also assume that the second judge credited the plaintiff because

he extended the order. Quilla Q. v. Matt M., 102 Mass. App. Ct.

237, 238 n.3 (2023).

There is no evidence regarding the length of extension the

plaintiff requested at the initial March 23, 2020, hearing.

"The Trial Court's guidelines for proceedings under G. L.

c. 209A strongly suggest that an order after notice should be

for a minimum of one year, unless the plaintiff requests a

shorter period or the court finds that a shorter period is

warranted." Moreno v. Naranjo, 465 Mass. 1001, 1002 n.2 (2013),

citing Guidelines for Judicial Practice: Abuse Prevention

10
Proceedings § 6.02 & commentary (Sept. 2011).3 At the same time,

during the pandemic, Standing Order 2-20 mandated that 209A

orders issued at a virtual hearing after notice "be issued only

until such date at which the court can schedule an in-person

hearing." Standing Order 2-20(B)(3). The second judge made no

findings about May 27, 2020, being the first date at which an

in-person hearing could be scheduled, or that extending the

order for two months, to the date of the next event in the

parties' divorce, was reasonably necessary to protect the

plaintiff from further abuse but "an extension of a full year

was not." Moreno, supra at 1003. If the judge based his

decision on factors having to do with the divorce, that was

improper. See id. at 1002. "The exclusive focus must be on the

applicant's need for protection." Singh v. Capuano, 468 Mass.

328, 334 (2014).

3. August 2020 extension. Decisions to extend 209A orders

"must be based on the evidence, after hearings," Singh, 468

Mass. at 335, where each party had "a fair opportunity to

present his case." S.T. v. E.M., 80 Mass. App. Ct. 423, 430-431

(2011). "A meaningful opportunity to be heard includes an

opportunity to address the material and determinative

3 The guidelines were revised after the events at issue here.
See Guidelines for Judicial Practice: Abuse Prevention
Proceedings (Oct. 2021).

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allegations at the core of a party's claim or defense and to

present evidence on the contested facts." Idris I. v. Hazel H.,

100 Mass. App. Ct. 784, 788 (2022).

Here, the plaintiff's counsel made factual allegations that

went to the core of the plaintiff's claim of continuing fear,

and which the defendant sought the opportunity to challenge.

The second judge should not have denied that request.

"[A]rguments of counsel are not a substitute for evidence,"

Idris I., 100 Mass. App. Ct. at 789, and it is well settled that

"[a] defendant has a general right to cross-examine witnesses

against him." Frizado v. Frizado, 420 Mass. 592, 597 (1995).

We appreciate that the second judge was grappling with

logistical issues caused by the pandemic, that he did not have

the benefit of our decision in Idris I., and that there could

have been "a tacit agreement" to proceed on August 27 by

representations of counsel, Idris I., supra at 790-791, based on

the statement by the plaintiff's attorney, "I understand that

this isn't an evidentiary hearing." But plainly any such

agreement ended when the defendant asked to question the

plaintiff about her attorney's representations. And nothing in

Standing Order 2-20 authorized extensions of 209A orders without

an evidentiary hearing. See Standing Order 2-20(F). Given the

circumstances, the second judge should not have extended the

order without an evidentiary hearing.

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The absence of an evidentiary hearing on August 27, 2020 is

not prejudicial, however, because the defendant ultimately

received an evidentiary hearing on February 22, 2021. Contrast

Idris I., 100 Mass. App. Ct. at 789. Thus, the defendant had "a

meaningful opportunity to be heard" on the allegations made by

the plaintiff's attorney on that date, at "a full and fair

hearing" on February 22. See Frizado, 420 Mass. at 598

("Whether a defendant's constitutional rights have been violated

will depend on the fairness of a particular proceeding"). Thus,

we proceed to that order.

4. February 2021 extension. On February 22, 2021, the

plaintiff testified to, and was cross-examined about, her

continuing fear of the defendant based on his entering her

garage at a time when the 209A order required him to stay near

his car, see Rauseo v. Rauseo, 50 Mass. App. Ct. 911, 912 (2001)

(defendant's threats included leaving packages on doorstep in

violation of 209A order), and his "agitated conduct" in meetings

with professionals, including the parent coordinator. Pike v.

Maguire, 47 Mass. App. Ct. 929, 930 (1999). "The Probate Court

judge, who had both parties before h[er] and could observe their

demeanor, was entitled to credit the plaintiff's testimony."

Rauseo, supra. We will not substitute our credibility

determinations for hers. Against the backdrop of the abuse that

gave rise to the order and prior extensions and the "notoriously

13
volatile nature of child custody and visitation battles," Pike,

supra, which "authorities on domestic violence suggest [present]

an increased risk of harm on separation or divorce," Champagne

v. Champagne, 429 Mass. 324, 327 n.2 (1999), "[i]t was not error

[for the third judge] to extend the protective order." Rauseo,

supra. See Iamele v. Asselin, 444 Mass. 734, 741 (2005) ("It is

the totality of the conditions that exist at the time that the

plaintiff seeks the extension, viewed in the light of the

initial abuse prevention order, that govern").

The defendant claims that the children should not have been

included in the February extension because there was no evidence

he was a threat to them. But that extension order incorporated

the parties' agreement to modify the order "to comport with

[the] parenting plan identified in the parties' Separation

Agreement and any other mutually agreed upon changes," which

included striking so much of the 209A order that related to

custody and permitting the defendant all forms of contact with

the children. Thus, it is not clear to us how the defendant is

restrained above and beyond his own stipulation.

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Conclusion.4 The orders dated August 27, 2020, and February

22, 2021, extending the G. L. c. 209A order, are affirmed.

So ordered.

By the Court (Ditkoff,
Singh & Grant, JJ.5),

Clerk

Entered: March 7, 2023.

4 The plaintiff's request for appellate attorney's fees and costs
is denied. "Although the . . . appeal is unsuccessful, it is
not frivolous." Perry v. Zoning Bd. of Appeals of Hull, 100
Mass. App. Ct. 19, 25 n.10 (2021), quoting Filbey v. Carr, 98
Mass. App. Ct. 455, 462 n.10 (2020).
5 The panelists are listed in order of seniority.

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