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65 Mass.App.Ct. 477, 841 N.E.2d 723 |
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(Cite as: 65 Mass.App.Ct. 477, 841 N.E.2d 723) |
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Briefs and Other Related Documents
Appeals
Court of Massachusetts,Middlesex.
Christine CORRADO
v.
Hunt R.
HEDRICK, Jr., & another.FN1
FN1. Hunt R. Hedrick, III.
No.
05-P-287.
Argued
Dec. 12, 2005.
Decided
Jan. 31, 2006.
Background: Claimant filed complaints for protection seeking abuse
prevention orders against her fiancé and his 20 year old son. The
Framingham Division of the District Court Department, Middlesex County,
Paul F. Healy, Jr., and Douglas W. Stoddart, JJ., granted and
subsequently continued ex parte orders directing fiancé to vacate and
remain away from home, which was involved in ownership dispute between
parties.
Holdings: The Appeals Court,
Grasso, J., held that:
5(1)
sufficient basis existed for trial court's issuance of ex parte orders
against claimant's fiancé and his 20 year old son, but
6(2)
trial judge, absent proof of abuse, lacked authority to continue ex
parte order directing claimant's fiancé to vacate and remain away from
home.
Affirmed in
part and vacated in part.
West
Headnotes
[1] Breach of the
Peace 62
16
62 Breach of the Peace
62k15
Security or Order to Keep Peace or Protect Family
62k16
k. Nature of Remedy.
Most Cited Cases
Abuse
prevention statutes provides a statutory mechanism by which victims of
family or household abuse can enlist the aid of state to prevent further
abuse. M.G.L.A.
c. 209A, § 1 et seq.
[2] Breach of the
Peace 62
16
62 Breach of the Peace
62k15
Security or Order to Keep Peace or Protect Family
62k16
k. Nature of Remedy.
Most Cited Cases
Abuse
prevention statutes were enacted to address the problem of domestic
violence through the provision of judicial remedies. M.G.L.A.
c. 209A, § 1 et seq.
[3] Breach of the
Peace 62
16
62 Breach of the Peace
62k15
Security or Order to Keep Peace or Protect Family
62k16
k. Nature of Remedy.
Most Cited Cases
Abuse
prevention statutes provide a potent arsenal of remedies that requires
great sensitivity for the suffering and, sometimes, mortal danger that
flow from domestic violence, as well as alertness against allowing the
process to be used abusively by litigants for purposes of harassment. M.G.L.A.
c. 209A, § 1 et seq.
[4] Breach of the
Peace 62
17
62 Breach of the Peace
62k15
Security or Order to Keep Peace or Protect Family
62k17
k. Grounds for Requiring.
Most Cited Cases
Under
provision of abuse prevention statute, a person suffering from abuse
from an adult or minor family or household member may obtain a
protective order against a defendant who has perpetrated such abuse. M.G.L.A.
c. 209A, § 3.
[5] Breach of the
Peace 62
20
62 Breach of the Peace
62k15
Security or Order to Keep Peace or Protect Family
62k20
k. Application and Proceedings Thereon.
Most Cited Cases
Sufficient basis existed for trial judge's issuance of ex parte orders
against claimant's fiancé and his 20-year-old son, directing them to
refrain from abuse, not to contact claimant or her 14-year-old daughter,
and to leave and remain away from home, which was involved in ownership
dispute between parties; besides satisfying jurisdictional
“relationship” requirement, claimant's affidavits established sufficient
factual basis for judge's conclusion that fiancé and his son had caused
claimant physical harm or placed her in fear of imminent serious
physical harm, thereby warranting ex parte relief. M.G.L.A.
c. 209A, §§ 1,
3.
[6] Breach of the
Peace 62
19
62 Breach of the Peace
62k15
Security or Order to Keep Peace or Protect Family
62k19
k. Authority to Require or Take.
Most Cited Cases
Trial
judge, absent proof of abuse, lacked authority to continue ex parte
order directing claimant's fiancé to vacate and remain away from home,
which was involved in ownership dispute between parties; although court
expressed concerns that violence could occur if both parties remained in
same household, judge did not believe that fiancé had physically abused
claimant or posed threat of imminent serious physical harm to her, and,
having so concluded, judge lacked power to impose protective order as
prudential measure. M.G.L.A.
c. 209A, §§ 1,
3.
*724
Steven S. Epstein, Georgetown, for the defendants.
Dana Alan Curhan, Boston, for the plaintiff.
Present:
GRASSO, DREBEN, &
BERRY, JJ.
*725
GRASSO, J.
In this
appeal, we consider the constraints on a judge's power to award relief
under G.L. c. 209A. We conclude that when, at a contested hearing, a
plaintiff fails to prove that “abuse” has occurred, a judge may not
continue an ex parte order that directs the defendant to vacate and
remain away from the household because of subjective concerns that
violence may occur if both remain in the same household.FN2
FN2. As discussed infra, the ex parte orders were proper.
1. The
ex parte orders. On Friday, August 20, 2004, Christine Corrado
filed complaints for protection under G.L. c. 209A, with accompanying
affidavits, that sought abuse prevention orders against her fiancé, Hunt
R. Hedrick Jr. (Randy), and his twenty year old son, Hunt R. Hedrick III
(Hunt III). In her affidavit against Randy, Corrado alleged that he
hit her on two occasions and threw her into a refrigerator; told her he
would bury her in the backyard if she left him; had a large collection
of guns in the house; was a heavy marijuana user; and was under
substantial stress because of the failing health of his parents, who
lived in Virginia. Corrado also related that she and Randy were
involved in a dispute over ownership of the home at 12 DiCarlo Road,
Hopkinton. The home was in Randy's name, but she had invested
substantial sums. Corrado had been staying at her parents' home in
Framingham in order to avoid Randy and Hunt III who were returning from
Virginia to attend Hunt III's court date. Randy told her not to return
to DiCarlo Road and to send someone to retrieve her belongings.
As to Hunt
III, Corrado's affidavits alleged that he was a drug dealer and user who
was on probation; maintained drug paraphernalia and caused other
problems in the home; had threatened to kill her and her daughter in
the recent past; and had cut his father with a knife. Corrado also
described his assaultive behavior, his use of knives with peers, his
knowledge of his father's guns, and her fear of living with him during
Randy's frequent travels to Virginia.
After an ex
parte hearing, a District Court judge granted restraining orders that
directed Randy and Hunt III, respectively to refrain from abuse; not to
contact Corrado or her fourteen year old daughter Lalia and to remain at
least fifty yards away from them; to surrender all firearms; and,
significant to this appeal, to leave and remain away from the residence
at 12 DiCarlo Road.
2. The
evidentiary hearing. The matters first came on for hearing on
October 5, 2004. Randy appeared with counsel who moved to dismiss the
orders nunc pro tunc to August 20. A different judge heard testimony
from Corrado, Lalia, and Randy, and allowed Randy's counsel limited
cross-examination. Various e-mails and notes detailing telephone calls
between Corrado and Randy during the months of May through September
were admitted in evidence as exhibits.
Corrado
testified that she and Randy had “very large financial issue[s]”
regarding the property at 12 DiCarlo Road. They had communicated by
phone while Randy was en route from Virginia. Randy told her that she
was not to come back to the house and that he planned to change the
locks on the door. Corrado had no objection to telephone contact to
save on attorneys' fees, but she objected to Hunt III remaining in the
home. In the past, she had overheard him tell his father that he would
kill her.
*726
Lalia testified that Randy had used crude words and swears toward
Corrado, but “[n]ot like I'll kill you, ... just ... crude words.”
Randy
denied ever threatening Corrado or being physically abusive to her. He
confirmed that he and Corrado were locked in a dispute over her
financial interest in the property and that in July he told her that she
had thirty days to find a place to live and to vacate the property.
They had scheduled a mediation session for August 19 to resolve their
financial dispute, but Corrado had sabotaged the mediation by misleading
him as to its scheduled time and place. On the advice of his lawyer,
Randy changed the locks to the property on August 19 and contacted the
Hopkinton police to have a “no trespass” order issued against Corrado.
On August 20, he and Corrado discussed settlement, but she rejected
his offer to pay her $146,500 for her interest or to let her buy his
interest for $50,000. Her response was, “I'll see you in court and I'm
going to make your life miserable.” Corrado then obtained the
restraining order against him.
Randy also
testified that Corrado had a volatile temper. She would yell, scream,
stomp around, slam doors, and throw things, including liquids in his
face. He stated that the incident involving the refrigerator,
referenced in Corrado's affidavit, had actually occurred a year prior.
According to his testimony, in the course of an argument Corrado threw
a beer bottle at him. He laughed at her, causing her to become even
more irritated. As he went to get a towel to clean up the beer,
Corrado hit him in the testicles with the beer bottle. When he
“instinctively impulsively” pushed her away from him, she “stumbled and
fell into the refrigerator.”
After
considering the testimony, the judge told Corrado that he found Randy's
version of events more credible than hers, and that “[l]egally I don't
feel that you have proven your case.”
FN3 He told
the parties that he intended to vacate the orders and sought their input
for resolving the stalemate over the right to immediate occupancy of the
property. When the parties failed to reach a resolution, the judge
stated that he would vacate all protective orders except those that
directed Randy (and Hunt III) to remain away from the premises and
authorized them to retrieve their personal belongings in the company of
the police. The judge expressed his intention to leave those orders in
place for a week to allow the parties to resolve the dispute.
FN3. The judge went on to say, “Legally I want to vacate the
order. Practically, I'm going to give you some time to do something
legally to decide who can stay (inaudible) night. I don't want to use
this process to give one or the other person occupancy. Now, the
problem is, if I do nothing, it could end up being a lawless, chaotic
circumstance where both sides are sitting in the house refusing to leave
and that could be explosive. So I'm really in a lot of trouble here,
unless I extend this for a short period of time.”
Before
continuing the hearing, the judge reiterated to Corrado that she had not
proved that Randy had physically abused her or threatened her with
imminent serious physical harm. He told her that he believed that she
had come to court solely to gain leverage in their ongoing property
dispute. Nevertheless, the judge stated that he would extend the order
that Randy and Hunt III remain away from the property for a week because
of his concerns that a vacuum regarding the right to use and occupy the
premises could lead to an explosive situation should both sides sit in
the house and refuse to leave.
On October
12, Corrado appeared with her attorney. Counsel appeared for Randy*727
and Hunt III, who were back in Virginia. The attorneys reported that
the parties had made no headway regarding the property dispute. With
respect to Corrado's allegations against Randy, the judge restated his
prior determination that Corrado had failed to meet her burden of proof
against Randy and had sought a restraining order not out of fear for her
safety but as a leverage in the property dispute. Although the judge
recognized that maintaining the order to vacate in place was of dubious
legal validity, he again extended the order directing Randy to vacate
and remain away from the property until October 20 in the hope that by
that date the parties could reach an amicable civil settlement. With
respect to Corrado's allegations against Hunt III, the judge
reconsidered his previous determination that Hunt III did not pose a
danger. The judge reinstated against Hunt III the previously vacated
orders that Hunt III refrain from abusing and have no contact with
Corrado.
On October
20, the judge learned that the property dispute remained unresolved.
At a loss for a practical solution, the judge again extended the order
directing Randy to remain away from the premises until January 4, 2005.
FN4 The judge
acknowledged candidly that the order “is as marginal an order as I have
ever written. And the only reason I would extend it is I am scared to
death of these two people sitting in the same house. It is untenable,
and I don't know of any legal means other than extending this order.”
FN5 The order
has since expired.FN6
FN4. The judge also stated: “The biggest fear of any Judge
is that he vacates an order and physical violence occurs after the
vacature of that order.... [M]y nightmare is that I vacate the order
and that [Randy] returns to the house. Mr[s]. Corrado stays in the
house. They could stay there for days or weeks. It's obvious they
can't stand each other. It's obvious that the level of the rhetoric to
one another is at a heightened state.
“Although there is no belief on my part that other than being inside the
house, that [Randy] would do any harm to her. I just can't put them in
the same room for extended days or weeks.”
FN5. At the prodding of counsel for Randy, the judge included
in the order a provision that Corrado convert all utilities to her name,
immediately assume certain mortgage and tax obligations, and provide
proof of payment to opposing counsel.
FN6. The matter is not moot. See
Smith v. Joyce, 421 Mass. 520, 521, 658 N.E.2d 677 (1995)
(statute requires appropriate law enforcement agency to destroy record
of vacated orders); Wooldridge
v. Hickey, 45 Mass.App.Ct. 637, 638, 700 N.E.2d 296 (1998)
(defendant has surviving interest in establishing order not lawfully
issued to remove stigma from his name and record and collateral use in
future proceedings); Jones
v. Gallagher, 54 Mass.App.Ct. 883, 887, 768 N.E.2d 1088 (2002);
Dollan
v. Dollan, 55 Mass.App.Ct. 905, 905 n. 2, 771 N.E.2d 825 (2002).
[1][2]
3. Discussion. General Laws c. 209A “provides a statutory
mechanism by which victims of family or household abuse can enlist the
aid of the State to prevent further abuse.” Commonwealth
v. Gordon, 407 Mass. 340, 344, 553 N.E.2d 915 (1990).
The statute was enacted “to address the problem of domestic violence
through the provision of judicial remedies.” Turner
v. Lewis, 434 Mass. 331, 332, 749 N.E.2d 122 (2001).
“The fundamental purpose of proceedings under c. 209A is to adjudicate
the need for protection from abuse and, if that need is found to exist,
to provide protective court orders.” Guidelines for Judicial Practice:
Abuse Prevention Proceedings § 1:01 (Dec.2000).
[3] The statute provides a potent arsenal of remedies that
“requires great sensitivity for the suffering and, sometimes, mortal
danger that flow from domestic violence,”*728 Szymkowski
v. Szymkowski, 57 Mass.App.Ct. 284, 286, 782 N.E.2d 1085 (2003),
as well as alertness “against allowing the process to be used, as it
sometimes is, ‘abusively by litigants for purposes of ... harassment.’ ”
Id.
at 287, 782 N.E.2d 1085, quoting from
Jones v. Gallagher, 54 Mass.App.Ct. 883, 887 n. 4, 768 N.E.2d 1088
(2002). The statute is not a panacea for all social ills,
nor a means of circumventing other available judicial processes for
resolving disputes. See
G.L. c. 209A, § 3, as amended through St.1990, c. 403, § 3
(“No order under this chapter shall in any manner affect title to real
property”).
[4]
Section 3 of c. 209A, as amended through St.1990, c. 403,
§ 3, provides that “ ‘[a] person suffering from abuse from an adult or
minor family or household member may’ obtain a protective order against
a defendant who has perpetrated such abuse.” Vittone
v. Clairmont, 64 Mass.App.Ct. 479, 484, 834 N.E.2d 258 (2005).
As pertinent to this action,
§ 1 of c. 209A, as amended through St.1990, c. 403, § 2,
defines “abuse” as:
“[T]he
occurrence of one or more of the following acts between family or
household members:
“(a)
attempting to cause or causing physical harm;
“(b)
placing another in fear of imminent serious physical harm.”
FN7
FN7. Corrado made no allegation that either defendant engaged
in “abuse” by “causing [her] to engage involuntarily in sexual relations
by force, threat or duress.” G.L.
c. 209A, § 1, as amended through St.1990, c. 403, § 2.
As a
predicate to the issuance of a protective order, the statute requires a
determination that the defendant has perpetrated “abuse” within the
meaning of the statute. Put differently, a sine qua non for the
issuance of a statutory protective order is a finding of abuse. Upon a
finding of abuse, a court may issue protective orders. See
G.L. c. 209A, § 3. Absent such a finding, the remedies of
§ 3 are not available.
[5] We now turn to the ex parte orders of August 20 and the
orders that followed the hearing of October 5. We conclude that the
judge did not err in entering the August 20 ex parte orders against
Randy and Hunt III (or in extending these orders pending full hearing).
Notwithstanding the defendants' arguments to the contrary, it is
beyond dispute that the ex parte orders entered on sufficient basis.
Corrado, Randy, and Hunt III fell within the ambit of “household
members” as that term is defined in the statute, and the court had
jurisdiction to entertain Corrado's ex parte complaint against each of
them. See
G.L. c. 209A, § 1; Sorgman
v. Sorgman, 49 Mass.App.Ct. 416, 417, 729 N.E.2d 1141 (2000).
Corrado and Randy were in a substantive dating relationship and
resided together at 12 DiCarlo Road. Hunt III also resided at that
location. Besides satisfying the jurisdictional “relationship”
requirement, Corrado's affidavits established a sufficient factual basis
for the judge's conclusion that Randy and Hunt III, respectively, had
caused her physical harm or placed her in fear of imminent serious
physical harm, thereby warranting ex parte relief.
[6] The orders that followed the evidentiary hearing of
October 5 stand on different footing. That hearing was a civil
proceeding at which Corrado had the burden of demonstrating by a
preponderance of the evidence that each defendant's actions either
caused her physical harm, or placed her in fear of imminent serious
physical harm. See
Frizado v. Frizado, 420 Mass. 592, 597, 651 N.E.2d 1206 (1995);
*729Jones
v. Gallagher, 54 Mass.App.Ct. at 890, 768 N.E.2d 1088; Keene
v. Gangi, 60 Mass.App.Ct. 667, 669-670, 805 N.E.2d 77 (2004);
Vittone
v. Clairmont, 64 Mass.App.Ct. at 481 n. 4, 834 N.E.2d 258.
The judge's findings manifest that Corrado failed in her burden of
proving that Randy had perpetrated “abuse” on her.
The judge
expressed unambiguously his disbelief of Corrado's allegations that
Randy had caused her physical harm or placed her in fear of imminent
serious physical harm. The judge specifically concluded that Randy's
version was more credible than Corrado's and that she had come to court
seeking
c. 209A protection as a wedge in her property dispute with
Randy.FN8
See
Jones v. Gallagher, 54 Mass.App.Ct. at 887 n. 4, 768 N.E.2d 1088,
and cases cited therein (recognizing that litigants may abuse the
c. 209A process for purposes of harassment); Szymkowski
v. Szymkowski, 57 Mass.App.Ct. at 287, 782 N.E.2d 1085.
Findings that are based on credibility assessments are uniquely the
province of the trial judge, and we will not disturb them on appeal.
See
Commonwealth v. Boucher, 438 Mass. 274, 275-276, 780 N.E.2d 47
(2002); C.O.
v. M.M., 442 Mass. 648, 655-656, 815 N.E.2d 582 (2004).
FN8. We find no abuse of discretion or other error of law and
leave undisturbed the judge's determination on October 12, upon
reconsideration, that Hunt III posed a threat of imminent serious
physical harm and that there existed a basis for issuing protective
orders against him.
Once the
judge concluded that Corrado had failed in her burden of proof, he erred
in extending the order that directed Randy to vacate and remain away
from 12 DiCarlo Road. Before the available remedies for dealing with
domestic abuse may be invoked, “abuse” must be proved. Indeed, to
remedy the problems of domestic abuse, the Legislature has seen fit to
permit the District Court, and other courts that are not courts of
general equity jurisdiction, the power to issue equitable orders in
instances where abuse is found. See
Zullo v. Goguen, 423 Mass. 679, 682, 672 N.E.2d 502 (1996)
(“orders made under
c. 209A are equitable in nature”). Absent proof of abuse,
the judge lacked authority to impose the equitable remedies available
under the statute.
To his
credit, the judge did not rubber stamp Corrado's complaint. As the law
requires, he considered all the evidence conscientiously, made a
discerning appraisal, and concluded that she had failed in her burden of
proof. See
Frizado v. Frizado, 420 Mass. at 597, 651 N.E.2d 1206.
While the judge recognized that Corrado's failure to prove abuse
imposed constraints on the remedial powers available, he feared that
removing the order that directed Randy to remain away from the residence
would create a vacuum that left each party free to return to the
residence, where their dislike for each other would pose a potentially
explosive situation. In utilizing the remedies of
c. 209A to alleviate this concern, the judge erred. See
Uttaro v. Uttaro, 54 Mass.App.Ct. 871, 874-875, 768 N.E.2d 600
(2002) (abuse prevention order permissible only if predicate
conditions shown and not as prophylactic against putative violations).
As observed
in
Vittone v. Clairmont, 64 Mass.App.Ct. at 486, 834 N.E.2d 258:
“A
restraining order is not to be issued ‘simply because it seems to be a
good idea or because it will not cause the defendant any real
inconvenience.’ Smith
v. Joyce, 421 Mass. 520, 523 n. 1[, 658 N.E.2d 677] (1995).
There must be more than ‘[g]eneralized apprehension, nervousness,
feeling aggravated or hassled,’
Wooldridge v. Hickey, 45 Mass.App.Ct.637, 639[, 700 N.E.2d 296
(1998) ], because what is of ‘central importance’*730
is the ‘fear of imminent serious physical harm.’ Id.
at 641[, 700 N.E.2d 296]. The applicant's fear must be more
than ‘subjective and unspecified’; viewed objectively, the question is
‘whether the plaintiff's apprehension that force may be used is
reasonable.’ Carroll
v. Kartell, 56 Mass.App.Ct. [83,] 86-87 [, 775 N.E.2d 457 (2002) ].”
Here, the
judge did not believe that Randy had physically abused Corrado or posed
a threat of imminent serious physical harm to her. In these
circumstances, the judge's concern about what might occur were both
parties free to return to the home unfettered by an order was no
different from the “[g]eneralized apprehension” of abuse that the courts
have refused to recognize as abuse under
c. 209A.
Wooldridge v. Hickey, supra; Uttaro
v. Uttaro, 54 Mass.App.Ct. at 874, 768 N.E.2d 600. Keene
v. Gangi, 60 Mass.App.Ct. at 670-671, 805 N.E.2d 77.
Indeed, the judge's concern reflected as much generalized fear of what
Corrado might do to Randy as of what Randy might do to her. Having
concluded that Randy had not physically abused or attempted to abuse
Corrado in the past and did not pose an imminent threat of serious
physical harm, there was no objective basis for concluding that abuse
had been shown and the judge lacked the power to impose a protective
order as a prudential measure.
We do not
underestimate the practical difficulty that faced the judge or the
impulse to continue the order to vacate as insurance against the
possibility of abuse. However, maintaining in place an abuse
prevention order under
c. 209A is not a permissible remedy when abuse has not been
proved. While the judge was powerless to impose a statutory remedy,
other avenues of judicial process remained available to effectuate
peaceful resolution of the parties' apparently intractable impasse, such
as an equity action in the Superior Court or a summary process action.
In sum, the
abuse prevention orders issued against Hunt III are affirmed, as is the
initial ex parte order against Randy. The subsequent abuse prevention
orders issued against Randy are vacated. The District Court judge
shall cause a direction to be sent, conformably to the provision of
G.L. c. 209A, § 7, third par., for the destruction of all
record of the vacated orders. See
Vaccaro v. Vaccaro, 425 Mass. 153, 155-159, 680 N.E.2d 55 (1997).
So
ordered.
Mass.App.Ct.,2006.
Corrado
v. Hedrick
65
Mass.App.Ct. 477, 841 N.E.2d 723
Briefs and
Other Related Documents
(Back to top)
•
2005 WL 1520552 (Appellate Brief) Reply Brief of Appellants
(May. 25, 2005) Original Image of this Document (PDF)
•
2005 WL 1304075 (Appellate Brief) Brief For The
Plaintiff/Appellee (May. 11, 2005) Original Image of this Document (PDF)
•
2005-P-0287 (Docket) (Mar. 04, 2005)
END OF
DOCUMENT
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Thomson/West. No Claim to Orig. U.S. Govt. Works.
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