Permanent
order. In 1990, the Legislature
rewrote the statute, see St. 1990,
c. 403, 3, adding
language that expressly grants
the judge discretionary authority
to "enter a permanent
order" at the renewal
hearing, generally, the date
set in the original order
when "the order is to
expire" and "the
matter will again be heard."
G. L. c. 209A, 3.
[6]
See Crenshaw v. Macklin, 430
Mass. 633, 634-635 (2000).
General Laws c. 209A,
3, mandates that initial
relief be granted for a fixed
period of time, not to exceed
a year, and that the order
state on its face the date
and time that the order is
to "expire" and
the matter will again be "heard."
Upon that date, if the plaintiff
appears, the court is directed
to "determine" whether
to extend or make permanent
the order. Without further
action by the court, the Legislature
has directed that the order
expire. There is no presumption
that the order be continued.
There is no entitlement that
the order be made permanent.
The order expires unless extended
after a judicial determination,
essentially, a new finding,
that the plaintiff continues
to require protection from
"abuse" as explicitly
defined in c. 209A, 1
-- in this case, requiring
a finding that a permanent
order is, in fact, what is
reasonably necessary to protect
Jones from being placed "in
fear of imminent serious physical
harm" by Gallagher. See
Commonwealth v. Molloy, 44
Mass. App. Ct. 306, 309 (1998)
("extension of an annual
order pursuant to 3 . . .
is . . . by
no means automatic");
Pike v. Maguire, 47 Mass.
App. Ct. at 929-930.
There is no burden on a defendant
to testify or present evidence.
"The burden is on the
complainant to establish facts
justifying the . . .
continuance of an abuse prevention
order. . . .
The plaintiff must make the
case for the awarding of relief."
Frizado v. Frizado, 420 Mass.
at 596. "Although
it is not expressly stated
in G. L. c. 209A, . . .
[the] plaintiff must make
a case for relief by a preponderance
of the evidence." Id.
at 597. See Smith v.
Joyce, 421 Mass. at 522.