MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from the order denying her motion for reconsideration of a District Court judges decision to deny her application for a G. L. c. 209A abuse prevention order, at the ex parte stage. On appeal, she argues that the judge failed to apply the proper standard of proof. For the reasons discussed below, we vacate the order and remand for further consideration consistent with this courts memorandum and order.
Background. On November 1, 2019, the plaintiff applied for an abuse prevention order.
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Her testimony and affidavits alleged the following. The plaintiff and the defendant were in a dating relationship for approximately one month in 2018, and continued to maintain a casual relationship into the spring of 2019. The first incident that prompted her c. 209A application occurred on or around October 29, 2018, when the defendant “put their hands on [the plaintiff] sexually” and “masturbated in front of [the plaintiff]” without the plaintiffs consent.
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The plaintiff also averred that on or around March 28, 2019, the defendant “forced their hands on [the plaintiff] sexually” while the plaintiff was asleep. She testified that she “woke up that morning to them engaging in sex with [her].” Both the plaintiff and the defendant worked in the same regional comedy scene, and these incidents prevented the plaintiff from participating in that community “without fear of running into [the defendant] ․, and [of] further harassment from them.”
Following this testimony, the judge asked the plaintiff whether there had been contact between the plaintiff and the defendant following the March incident. The judge stated that “a restraining order is to protect you from serious imminent physical harm,” and asked whether the defendant put the plaintiff at such a risk. Describing an incident from the previous month, the plaintiff testified to an evening when the defendant appeared at a comedy night venue where the plaintiff often performed. Upon seeing the defendant, the plaintiff “barricade[d]” herself with friends.
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The plaintiff testified that both this incident and the sexual assaults put her in fear of the defendant.
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After hearing the testimony, the judge denied the plaintiffs request for an ex parte order, finding that the plaintiff had not met her burden. The plaintiffs attorney requested that the judge “set it out for a 10 day to put on more evidence,” but the judge denied the request, again stating that the plaintiff had not met the required standard. On November 12, 2019, the plaintiff filed a “Motion to Reconsider and Motion to Modify” (motion for reconsideration).
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On November 18, 2019, the judge denied the motion, indicating that “the plaintiff did not meet her burden that she had an objective reasonable fear of harm (either imminent or not) from the defendant.”
Discussion. On appeal, the plaintiff contends that the judge erred in denying her motion for reconsideration because her motion established that the judge had applied the wrong legal standard in denying her application for an abuse prevention order. We review the denial of a motion for reconsideration under the abuse of discretion standard. See Littles v. Commissioner of Correction, 444 Mass. 871, 878-879 (2005). A motion for reconsideration is “designed to correct judgments which are erroneous because they lack legal or factual justification.” Pentucket Manor Chronic Hosp., Inc. v. Rate Setting Commn, 394 Mass. 233, 237 (1985). The plaintiff contends that the judges denial of her application for an abuse prevention order was without legal justification because she had made out a claim for ex parte relief, contrary to the judges determination. We agree that the plaintiff had made out a claim for relief but disagree that the judge was therefore required to issue an ex parte order.
“The well-established purpose of [G. L. c. 209A] is to protect victims of domestic violence.” Moreno v. Naranjo, 465 Mass. 1001, 1002 (2013). It “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 (1990). “Abuse” is defined as any of the following: “(a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; [or] (c) causing another to engage involuntarily in sexual relations by force, threat or duress.” G. L. c. 209A, § 1. Recognizing that any delay in holding a hearing on the merits of an application for a c. 209A abuse prevention order could compromise a plaintiffs safety, the statute provides for the issuance of ex parte, temporary orders if the plaintiff demonstrates a “substantial likelihood of immediate danger of abuse.” G. L. c. 209A, § 4.
Here, the judge was well within her discretion in declining to issue an ex parte order. See E.C.O. v. Compton, 464 Mass. 558, 561-562 (2013) (ex parte order under G. L. c. 209A, § 4, reviewed for abuse of discretion). As the judge indicated, the sexual assaults occurred in private settings quite some time in the past and the only recent contact appeared to be in a public place where the plaintiff did not allege that the defendant did or said anything in particular. The judge reasonably could have concluded that the plaintiff had failed to demonstrate a “substantial likelihood of immediate danger of abuse” to warrant an ex parte order.
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G. L. c. 209A, § 4.
There is good reason to require such a showing, where a defendant has no notice of the proceeding. Even temporary orders have collateral consequences. See S.T. v. E.M., 80 Mass. App. Ct. 423, 430 n.7 (2011) (“A record of a c. 209A order has long-term collateral consequences for a defendant, creating ‘a blemish on [his] record for the rest of [his] life’ ” [citation omitted]). Thus, G. L. c. 209A, § 4, balances “the important public policy of preserving the fundamental right to be protected from the devastating impact of domestic abuse,” Callahan v. Callahan, 85 Mass. App. Ct. 369, 373-374 (2014), with the due process rights of the defendant, see C.O. v. M.M., 442 Mass. 648, 656-657 (2004). See Nollet v. Justices of the Trial Court of the Commonwealth of Mass., 83 F. Supp. 2d 204, 214 (D. Mass. 2000) (“the ex parte proceeding of [c.] 209A, § 4, provides all the procedural protections necessary to satisfy the requirements of due process of law”).
In declining to set the matter for a two-party hearing, however, the judge essentially dismissed the plaintiffs complaint as a matter of law. Indeed, she ruled that the plaintiff had failed to meet her burden of establishing an “objective reasonable fear of harm.” Yet, the plaintiff had sought an order of protection based upon the fact that she had “suffered abuse” when the defendant “caused [her] to engage involuntarily in sexual relations by force, threat or duress.” G. L. c. 209A, § 1. In order to show entitlement to an order of protection on this basis, the plaintiff was required to show that she continued to suffer from the abuse. See Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 187 (2020), quoting McIsaac v. Porter, 90 Mass. App. Ct. 730, 733-734 (2016) (abuse prevention order properly issued where evidence permitted judge to find defendant previously sexually abused plaintiff and that plaintiff was still suffering from that abuse).
The plaintiff testified that the defendant had sexually assaulted her, and that she remained in fear of the defendant. Moreover, she described a relatively recent incident in which her fear was demonstrated by her compulsion to hide from the defendant in a public venue. Thus, the plaintiff made out a claim that she was suffering from abuse due to the defendants past sexual assaults.
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She was entitled to an evidentiary hearing where the merits of her claim could be adjudicated “in the ordinary course.” M.G. v. G.A., 94 Mass. App. Ct. 139, 147 (2018). See id. at 148 (judges “retain their traditional, discretionary authority to dismiss a complaint ․ when the evidence, if believed, would not entitle the plaintiff to relief”).
The order denying the plaintiffs motion for reconsideration is vacated. The case is remanded for an ex parte hearing consistent with this memorandum and order.
So ordered.
Vacated and remanded.
FOOTNOTES
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. The plaintiff filed an initial complaint and affidavit on October 25, 2019. The judge declined to issue a temporary order because she did not find “immediate danger” to the plaintiff that would justify issuing an abuse prevention order “without notice to the other side.” As the plaintiff did not have a current residential address for the defendant for service, the judge also declined to schedule a two-party hearing. Instead, she advised the plaintiff to return to court the following week with an address for serving the defendant. The plaintiff returned on November 1, represented by counsel, and filed a supplemental affidavit; additionally, she provided the court with three work addresses for the defendant. As the November 1 hearing superseded the October 25 hearing, we need not review the judges determinations at that initial hearing. See, e.g., C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 564 (2017).
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. According to the plaintiff, who identifies as a transgender female, the defendant uses gender neutral pronouns.
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. In her affidavit, the plaintiff stated that the defendant had earlier warned her against telling others about the sexual assaults and told her to stay away from the comedy scene. The plaintiff additionally stated that the defendant, after learning through mutual friends that the plaintiff was going to the police, filed a “false” restraining order against the plaintiff and later retracted it. The plaintiff further testified that the defendant had told mutual acquaintances that the plaintiff was a “liar” and that they were “going to deal with [her].”
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. The plaintiff also expressed concern that the defendant would destroy her reputation in the comedy scene. The judge appropriately noted that abuse prevention orders were not meant to address such injuries. See Uttaro v. Uttaro, 54 Mass. App. Ct. 871, 874-875 (2002) (fear that defendants conduct would cause plaintiff to be arrested insufficient).
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. The portion of the plaintiffs motion that requested that “the [c]ourt modify the order[s case caption] to reflect only [the plaintiffs] legal name” was not argued in the plaintiffs brief, and we do not address it here. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) (“The appellate court need not pass upon questions or issues not argued in the brief”).
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. In making this determination, the judge was authorized to take into consideration the credibility of the plaintiffs claims. See Guidelines for Judicial Practice: Abuse Prevention Proceedings § 3:07, at 71 (Sept. 2011) (at ex parte hearings, “[t]he court should question the plaintiff as necessary in order to obtain relevant information and assess credibility”).
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. To the extent that the judges decision was based on her credibility assessment, we note that such an assessment is inappropriate to dismiss a complaint that otherwise makes out a prima facie case for relief. Cf. M.G. v. G.A., 94 Mass. App. Ct. 139, 148 (2018).