[1]
Breach of the Peace 62 21
62 Breach of the Peace
62k15 Security or Order
to Keep Peace or Protect Family
62k21 k. Review.
Most Cited Cases Expiration
of abuse prevention orders issued
against former husband did not render
his appeal from the orders moot, where
entries of the orders were made in
Commonwealth's criminal records system,
former husband could be adversely
affected by them in event of future
applications for protective order
or in bail proceedings, and former
husband had interest in removing stigma
from his name and record by establishing
that orders were not lawfully issued.
M.G.L.A.
c. 209A, § 1 et seq.
[2] 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 Generalized
apprehension, nervousness, feeling
aggravated or hassled, i.e., psychological
distress from vexing but nonphysical
intercourse, when there is no threat
of imminent serious physical harm,
does not rise to the level of “fear
of imminent serious physical harm”,
so as to support issuance of abuse
prevention order.
M.G.L.A. c. 209A, § 1.
[3] 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 In
deciding whether to issue abuse prevention
order, the judge must focus on whether
serious physical harm is imminent
and should not issue an order on the
theory that it will do no harm, i.e.,
seems to be a good idea or because
it will not cause the defendant any
real inconvenience.
M.G.L.A.
c. 209A, § 1.
[4] Breach of the Peace
62 21
62 Breach of the Peace
62k15 Security or Order
to Keep Peace or Protect Family
62k21
k. Review.
Most Cited Cases On
former husband's appeal, Appeals Court
would not disturb abuse prevention
orders issued against former husband
in favor of his former wife, despite
absence of evidence of abuse in transcripts,
where questions posed to former wife
by trial judge showed that he realized
need to establish fear of imminent
serious physical harm, transcript
read “inaudible” at point former wife
responded to judge's question, and
former wife's answer could have described
past physical harm and fear of repeat
performance.
M.G.L.A.
c. 209A, § 1.
[5] Appeal and Error 30
497(1)
30 Appeal and Error
30X Record
30X(A) Matters to Be Shown
30k497
Grounds of Review
30k497(1) k. In General.
Most Cited Cases It
is the burden of an appellant to provide
Appeals Court with those portions
of the record that support his claims
on appeal.
[6] Appeal and Error 30
497(1)
30 Appeal and Error
30X
Record
30X(A) Matters to Be Shown
30k497 Grounds of Review
30k497(1) k. In General.
Most Cited Cases A
party claiming an insufficiency of
evidence has the burden on appeal
of furnishing the court with all the
evidence.
[7] Breach of the Peace
62 21
62 Breach of the Peace
62k15 Security or Order
to Keep Peace or Protect Family
62k21 k. Review.
Most Cited Cases Abuse
prevention orders and their review
on appeal are civil in nature, not
criminal. M.G.L.A.
c. 209A, § 1.
[8] Appeal and Error 30
766
30 Appeal and Error
30XII Briefs
30k766 k. Defects, Objections,
and Amendments.
Most Cited Cases An
appellate court is free to disregard
argument based on transcript not furnished
to the court.
[9] 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 Former
wife's claim that her former husband
subjected their children to verbal
harassment and her statement that
former husband hit their son and grabbed
him when angry did not demonstrate
“abuse”, as would support issuance
of abuse prevention order directing
former husband to stay away from his
children.
M.G.L.A. c. 209A, § 1.
*297
Joanne I. DeLong, Hadley,
for defendant.
Before
KASS,
SPINA and
BECK, JJ.
KASS, Justice. On the
ground that the record is devoid of
any evidence of abuse in the statutory
(G.L. c. 209A) sense, Stephen Hickey
appeals from abuse prevention orders
issued against him by a Probate Court
judge. Although the record
induces concern that, notwithstanding
an absence of evidence of abuse, the
judge may have acceded to the use
of c. 209A orders as a bargaining
chip in connection with pending proceedings
for modification of a divorce judgment,
Hickey has left a crucial gap in the
record that causes us to leave the
main order undisturbed. The
appeal is properly before us under
Zullo v. Goguen, 423 Mass. 679, 682,
672 N.E.2d 502 (1996),
and an order of a single justice allowing
late filing of a notice of appeal.
1. Circumstances of the c.
209A orders. Under a divorce
judgment that issued some years before
the proceedings now under review,
Wooldridge and Hickey had joint legal
custody of their three children and
Hickey had physical custody of them.
Before she applied for
an abuse prevention order, Wooldridge
had filed a complaint for modification
of the divorce judgment. FN1
Although that judgment had placed
physical custody of the children with
Hickey, the children had, apparently,
come to spend more time with their
mother, Wooldridge, than their father,
Hickey. Disputes about
responsibility and financial obligations
continued to roil between Wooldridge
and Hickey. Following
Wooldridge's application for a c.
209A order, the judge issued three
sets of orders: first, on September
4, 1996, he issued ex parte orders
directing Hickey to stay away from
Wooldridge and, somewhat anomalously,
from the three children of whom he
had physical custody and joint legal
custody; second, an order issued
September 12, after hearing, that
*298 extended the abuse prevention
order requiring Hickey to stay away
from Wooldridge until November 26;
third, on that latter date,
the judge extended the order for an
additional six months.
FN1. The record contains
neither the judgment of divorce nor
the complaint for modification. We
know of the existence of those documents
from testimony during the c. 209A
hearings but know few of their details.
[1] 2. Mootness. Although
the abuse prevention orders have expired,
Hickey's appeal is not moot. Entries
of the orders against Hickey have
now been made in the Commonwealth's
criminal records system, and Hickey
could be adversely affected by them
in the event of future applications
for an order under G.L. c. 209A or
in bail proceedings.
Frizado
v. Frizado, 420 Mass. 592, 593-594,
651 N.E.2d 1206 (1995).
Hickey has a surviving interest in
establishing that the orders were
not lawfully issued, thereby, to limited
extent, removing a stigma from his
name and record. Section
7, third par., of G.L. c. 209A provides
that whenever an abuse prevention
order is vacated, the court shall
direct the appropriate law enforcement
agency to destroy all record of the
vacated order.
See
Smith v. Joyce, 421 Mass. 520, 521,
658 N.E.2d 677 (1995).
As to the limited nature of that destruction
(it does not extend to expunging records
from the Statewide domestic violence
record-keeping system created by St.1992,
c. 188, § 7), see
Vaccaro v. Vaccaro, 425 Mass. 153,
155-159, 680 N.E.2d 55 (1997).
Contrast
Wotan v. Kegan, 428 Mass. 1003, 697
N.E.2d 133 (1998).
[2][3]
3. Evidence of abuse. For
purposes of obtaining a protective
order under G.L. c. 209A, abuse means:
“(a) attempting to cause or
causing physical harm; (b) placing
another in fear of imminent serious
physical harm; (c) causing another
to engage involuntarily in sexual
relations by force, threat or duress.”
G.L.
c. 209A, § 1, as appearing
in St.1990, c. 403, § 2. Generalized
apprehension, nervousness, feeling
aggravated or hassled, i.e., psychological
distress from vexing but nonphysical
intercourse, when there is no threat
of imminent serious physical harm,
does not rise to the level of fear
of imminent serious physical harm.
Larkin
v. Ayer Div. of the Dist. Court Dept.,
425 Mass. 1020, 681 N.E.2d 817 (1997).
The judge must focus on
whether serious physical harm is imminent
and should not issue a
c. 209A order on the theory
that it will do no harm, i.e., “seems
to be a good idea or because it will
not cause the defendant any real inconvenience.”
Smith
v. Joyce, 421 Mass. at 523 n. 1, 658
N.E.2d 677.
[4][5][6][7][8]
In the transcript of the proceedings
in the Probate Court, Wooldridge never
speaks of having suffered physical
harm; of being in fear of imminent
serious physical harm; or of
having been caused through force to
engage in unwanted sexual relations. FN2
In the main, what Wooldridge
had to say to the judge was that there
seemed to be no reasonable negotiating
with her former husband and that she
could not stand arguing with him.
She thought a protective
order would level the field in the
forthcoming custody and support discussion-obviously
not an appropriate criterion for issuance
of an abuse prevention order. During
the ex parte hearing, in particular,
Wooldridge spoke only of Hickey having
been “abusive” and “verbally abusive.”
There was no questioning
that explored what she meant by that.
The following excerpt
from the transcript of the second
hearing (following the ex parte one)
conveys the flavor of her testimony
on that occasion:
FN2. Counsel for Hickey
did not include the transcript of
the proceedings in the Probate Court
in the record-appendix. Abuse
prevention orders and their review
on appeal are civil in nature, not
criminal. Transcript of
proceedings in the trial court does
not automatically come before us.
An appellate court is
free to disregard argument based on
transcript not furnished to the court.
Kunen
v. First Agric. Natl. Bank, 6 Mass.App.Ct.
684, 689, 382 N.E.2d 750 (1978).
Arch
Med. Assocs., Inc. v. Bartlett Health
Enterprises, Inc., 32 Mass.App.Ct.
404, 406, 589 N.E.2d 1251 (1992).
As matter of discretion,
we sent on our own motion to the register
of probate in Franklin County, who
furnished us with a copy of the transcript,
but under the cases cited, we were
not bound so to do.
the Court: “Right, but
why does that cause you to feel that
you need a restraining order to be
in force? Are you getting
hate mail from him or you just-”
ms. Wooldridge: “No, (inaudible)-I
couldn't get what I needed from the
divorce (inaudible) because there's
no negotiations (inaudible).”
the Court: “But does he do more
than that, does he threaten you, does
he-” ms. Wooldridge: “He
wants (inaudible).” ms. Dulong:
“I would object to that. She
wrote something up, your honor. I'm
not
*299 (inaudible) she's going to testify.
I haven't had a chance
to see it.” the Court: “Is
that a recitation of some prior incidents?”
ms. Wooldridge: “Yes, just to
explain to you what I had to go through
the first time and letters from people
that (inaudible).” the Court:
“But my question to you is why
do you feel you need the additional
protection of an order for abuse and
to stay away from your residence and
not contact you, which if you didn't
have you feel you'd be subject to
some danger or imminent physical harm?”
ms. Wooldridge: “Yes.” the
Court: “Why? Why do you feel
that?” ms. Wooldridge: “Because
(inaudible).” the Court: “That
was when you were living with him,
right? You were married?”
ms. Wooldridge: “That was when
we negotiated our divorce. Every
time (inaudible).” the Court:
“Okay. And what's happened recently?
You've been separated
for seven years?” ms. Wooldridge:
“Yeah, and the divorce says
that I do what I do, and there was
just fighting about everything; it
was just literally no child support
payments, take care of all the important
issues (inaudible), and there is no
attempt, you know, at discussion,
there's just intimidation, there's
threats he's going to take them away
from me, threatens them he's going
to take them away from me. My
children depend on me.” the Court:
“So you feel the ability to
seek legal redress on the relative
responsibilities to the children under
the divorce, you feel that you have
unequal abilities to negotiate with
him because of his intimidating tactics,
is that what you're saying?” ms.
Wooldridge: “Yes.”
The questions that the judge
put to Wooldridge that we have underscored
show that he had not lost sight of
the central importance of the fear
of imminent serious physical harm
in these cases. See
Commonwealth v. Gordon, 407 Mass.
340, 348-349, 553 N.E.2d 915 (1990).
The judge inquires of
Wooldridge why she feels she is subject
to some danger of imminent physical
harm. Wooldridge merely
responds, “Yes.” The judge then asks,
“Why? Why do you feel that?” The
transcript reads, “Because,” and then,
just short of the meat in the coconut,
reads “inaudible.”
The answer may have described past
physical harm and fear of a repeat
performance that gave the judge a
basis for his order. FN3
We are not prepared, as a reviewing
court, to hypothesize the absence
of a response that might support a
finding of fear of imminent serious
physical harm. It is,
of course, the burden of an appellant
to provide us with those portions
of the record that support his claims
on appeal. Arch
Med. Assocs., Inc. v. Bartlett Health
Enterprises, Inc., 32 Mass.App.Ct.
404, 406, 589 N.E.2d 1251 (1992).
A party claiming an insufficiency
of evidence, therefore, has the burden
on appeal of furnishing the court
with all the evidence. Gaps
in an audio record of the kind that
appeared here can be repaired by using
the procedure set out in
Mass.R.A.P. 8(b)(3)(v),
as amended, 388 Mass. 1110 (1983),
captioned: “Unintelligible Portions
of the Cassette.”
FN3. It did not escape
our notice that, in continuing his
colloquy with Wooldridge, the judge
remarks, “Okay,” and then asks, “And
what's happened recently?” Wooldridge's
response describes no current conduct
that amplifies her earlier claim of
fear of some imminent physical harm.
We do not think, however,
that this exchange justifies an assumption
on our part that Wooldridge's response
recorded as inaudible gave the trial
judge nothing to go on to support
his ultimate finding and order.
[9] On the basis of the
record, as it was allowed to stand,
we shall not disturb the issuance
of the protective order issued September
12, 1996, directing Hickey to stay
away from Wooldridge. There
was no evidence that warranted issuance
of the ex parte order of September
4, but that order was subsumed by
the posthearing order of September
12. There was no evidence
of imminent serious physical harm
to the children. The most
that Wooldridge said about the children,
other than that they were subjected
to verbal harassment by their father,
*300 is that their father “has hit
my son and grabs him when angry.”
Without further explanation,
that statement was not evidence of
abuse within the meaning of the statute.
The orders of September 12
and November 26, 1996, directing the
defendant Hickey to stay away from
Wooldridge are affirmed. The
order to him to stay away from his
children is vacated. The
Probate Court judge shall cause a
direction to be sent, conformably
with
G.L. c. 209A, § 7,
third par., for the destruction of
all record of the vacated order.
So ordered.
Mass.App.Ct.,1998. Wooldridge
v. Hickey 45 Mass.App.Ct. 637,
700 N.E.2d 296
END OF DOCUMENT
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2006 Thomson/West. No Claim to Orig.
U.S. Govt. Works.
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