M.B. v. A.G.

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-1046

M.B.

vs.

A.G.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant challenges the District Court's order denying

his motion to retroactively vacate an abuse prevention extension

order entered on January 13, 2022 (motion to vacate). The

defendant contends that the judge abused his discretion in

denying the motion to vacate, because the defendant had

established that the extension order issued without evidentiary

support as a result of the plaintiff's counsel's

misrepresentation. Discerning no abuse of discretion, we

affirm.

Background. The plaintiff obtained an ex parte abuse

prevention order against the defendant, her then husband, on
December 30, 2020. 1 After a hearing where both parties appeared

on January 13, 2021, the order was extended for one year.

At the next scheduled hearing on January 13, 2022, both

parties appeared with counsel. The plaintiff's counsel

requested that the abuse prevention order be made permanent, or

in the alternative, extended for a year. The judge asked the

plaintiff's counsel, "Do you want to just make a proffer on

behalf of your client, or how did you want to proceed?" The

plaintiff's counsel stated that he was going to "give a brief

opening," and then proceeded to recount events that had taken

place between the parties in the past year, since the last

restraining order hearing. The plaintiff's counsel concluded

his opening statement by saying, "We are happy to go into

further details of this case; but overall, the affidavit

generally speaks for itself."

When asked whether the defendant was objecting to the

extension of the order, defense counsel stated, "we are

objecting to the extension for a long period of time. I think

1 The affidavit in support of the complaint for protection from
abuse recounted the defendant's history of mental health issues
(involving multiple involuntary commitments), alcohol addiction
and attempts at rehabilitation, and physical and sexual abuse of
the plaintiff and physical abuse of their child. It also
relayed that the plaintiff was seeking an emergency order
because the defendant had just learned that the plaintiff was
leaving him, and she was scared that he would end up hurting
her, their son, or himself. A complaint for divorce was filed
in the Probate and Family Court on January 8, 2021.

2
if it was extended for a short period of time, you know,

maybe -- I mean, for the record we are objecting, but we

understand that if it would be for like six months or something

like that there are things going on in the probate and family

court." Defense counsel went on to state that the plaintiff's

counsel's representations were "inaccurate" and then challenged

specific allegations in the plaintiff's affidavit by making his

own representations of what took place between the parties.

The judge asked for clarification of the defendant's

position: "And so your client is not objecting to an extension,

but he's objecting to a permanent order and a very long order.

Is that what you're saying?" Defense counsel replied, "Yes.

Yes. . . . I mean, obviously [the defendant] would like the

restraining order to be dismissed, and we dispute the abuse

allegations, but I'm particularly objecting to a long length."

Defense counsel again disputed the plaintiff's claims: "There's

allegations in their affidavit . . . Like none of this is true.

None of this is actually accurate."

After a brief discussion between the judge and defense

counsel regarding the status of proceedings in the Probate and

Family Court and pending matters that would require modification

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of the restraining order, 2 defense counsel stated: "I just

wanted Your Honor to be aware." The judge replied, "No. And I

appreciate that. I'm not going to issue a permanent order.

What I will do is I'm going to issue a one-year order. I find

the standard has been met for the extension." After further

discussion as to how the defendant would be served with the

newly extended order (extension order), 3 both counsel thanked the

judge and the hearing concluded.

Subsequently, the defendant was criminally charged with

violating the extension order on April 13, 2022. On June 30,

2022, the attorney representing the defendant in the criminal

matter filed an appearance in the restraining order matter, and

on August 23, 2022, moved, pursuant to G. L. c. 209A, § 3 and

Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), to retroactively

vacate the extension order. See Mitchell v. Mitchell, 62 Mass.

App. Ct. 769, 773-774 (2005). The defendant's motion was

premised on the theory that the extension order issued as a

result of a material misrepresentation made by the plaintiff's

attorney "about the only piece of evidence submitted" in

2 Among other things, defense counsel advised the judge that the
Probate and Family Court was likely to change child custody to
joint legal custody.

3 The hearing took place via Zoom, so the defendant was not
physically present in the courtroom.

4
connection with the extension request. 4 In his supporting

memorandum, the defendant explained that the material

misrepresentation was the plaintiff's attorney's statement that

he had submitted an "affidavit," when the document in question

did not meet the legal requirements of an affidavit. 5

The motion to vacate was heard by a different judge from

the one who had issued the January 13, 2022, extension order.

At the hearing, defense counsel argued, "I think that the

Court's error stemmed directly from [the plaintiff's counsel's]

misrepresentation about the inherent nature of that key piece of

evidence." Since the only evidence offered in support of the

extension order was not valid, defense counsel argued, the

extension order erroneously issued without any evidentiary

4 According to his affidavit in support of the motion to vacate,
newly-retained defense counsel obtained from the plaintiff's
counsel a copy of the document that the plaintiff's counsel
referred to during the January 13, 2022, hearing as the
plaintiff's affidavit; however, the document was not included in
a packet provided to him, and represented by the clerk's office
to be, a complete copy of the court file on the matter.

5 The document was a two-page, typed statement with a signature
and date. The word "affidavit" did not appear on the document,
nor did it include any oath or affirmation.

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support. The judge denied the motion, 6 and the defendant timely

appealed the denial to this court. 7

Discussion. The decision whether to grant a motion to

vacate an order under Mass. R. Civ. P. 60 (b) rests within the

sound discretion of the judge hearing the motion. See Judge

Rotenberg Educ. Ctr., Inc. v. Commissioner of Dep't of

Developmental Servs., 492 Mass. 772, 785 (2023). "Accordingly,

the denial of a motion under Rule 60 (b) will be set aside only

on a clear showing of an abuse of discretion. In effect, this

means that the decision will be affirmed unless the judge below

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 and citations

omitted). Id.

Here, the defendant moved to vacate on the basis that the

order was extended without evidentiary support due to a

misrepresentation of plaintiff's counsel. Whether the

misrepresentation was that a submitted document did not qualify

6 The order thus remained in effect, and was subsequently
renewed. That further extension is the subject of a separate
appeal.

7 The defendant subsequently moved for reconsideration, which was
denied. The defendant did not separately appeal from this
denial.

6
as an affidavit or that any document was submitted at all, 8 the

motion judge determined that the issue was obviated by the fact

that the defendant acquiesced to proceeding by way of proffer.

Indeed, the defendant never objected to the manner in which the

proceeding was taking place (proffers by counsel), and never

sought to present his own evidence or to examine the plaintiff,

who was available to testify. See Smith v. Joyce, 421 Mass.

520, 521-522 (1995) (rejecting argument that defendant's rights

were violated by order extended in his absence where his counsel

was present and failed to object to hearing going forward);

Vittone v. Clairmont, 64 Mass. App. Ct. 479, 481 n.4 (2005)

(representations of counsel could be considered by judge in

extending abuse prevention order where there was no objection to

procedure). Contrast C.O. v. M.M., 442 Mass. 648, 657-658

(2004) (abuse prevention order vacated where defendant sought to

present evidence and to cross-examine witnesses but was denied

opportunity).

On appeal, the defendant challenges this determination,

arguing that he cannot be held to have waived the right to an

evidentiary hearing because his failure to insist on one can be

8 At oral argument, an issue was raised as to whether the
defendant had preserved the claim that no document was submitted
at the relevant evidentiary hearing. Significant postargument
briefing was devoted to this issue. In view of the way we
resolve this case, we need not address the issue.

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attributed to the misrepresentation of the plaintiff's counsel.

Implicit in this argument is the premise that the defendant's

trial counsel would have insisted on an evidentiary hearing had

she known that no affidavit had been submitted to the court. 9

Yet, the defendant did not submit an affidavit from his trial

counsel. For all that appears from the record, defense counsel

anticipated that the abuse prevention order would likely be

extended for some period of time, given the seriousness of the

initial allegations and the ongoing contentious divorce

proceedings, and so decided to focus her efforts on preventing

the issuance of a permanent order. 10 See Iamele v. Asselin, 444

Mass. 734, 740 & n.4 (2005) (in determining whether need for

order remains in extension hearing, judge is to consider

totality of circumstances of relationship including basis for

9 To the extent the defendant claims that the plaintiff's
counsel's reference to the plaintiff's prepared statement as an
"affidavit" misled the defendant's attorney, we are unpersuaded.
The defendant's counsel referred to and argued against the
allegations in the plaintiff's prepared written statement,
indicating that she was in possession of it. That the document
did not constitute an affidavit would have been readily
apparent.

10Insistence on the plaintiff's testimony risked emphasizing the
seriousness of the initial allegations; counsel may well have
sought to avoid a negative inference being drawn against the
defendant if he chose not to testify, given his pending criminal
charges. See Singh v. Capuano, 468 Mass. 328, 333 (2014)
(negative inference may be drawn against defendant in
restraining order matter where defendant does not testify due to
pending criminal charges).

8
initial order and ongoing litigation likely to engender

hostility).

In the absence of an affidavit of trial counsel or evidence

that one was sought, the judge's determination that there was

acquiescence here was adequately supported. As the defendant

failed to establish that any misrepresentation by the

plaintiff's counsel caused the order to have been extended

without sufficient support, there was no abuse of discretion in

the denial of the motion to vacate. 11

Order entered September 15,
2022, denying motion to
retroactively vacate
January 13, 2022, extension
order, affirmed.

By the Court (Rubin, Singh &
Hershfang, JJ. 12),

Assistant Clerk

Entered: March 13, 2024.

11The plaintiff's request for an award of attorney's fees and
costs in connection with this appeal is denied.

12 The panelists are listed in order of seniority.

9