MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from an order vacating a permanent abuse prevention order against her husband, the defendant. The plaintiff argues that the defendant failed to meet his burden to show by clear and convincing evidence that there had been a significant change in circumstances warranting termination of the permanent order. We affirm.
Background. 1. Initial abuse prevention order. We summarize the facts underlying the issuance of the original abuse prevention order. On March 25, 2018, the parties’ ten year old son called the police to report that his father was attacking his mother. Upon arriving at the marital home, responding officers heard a man shouting loudly and a woman “shriek” as if she were being assaulted. Through a window, an officer saw the defendant grab the plaintiff “by the scruff of her sweat shirt and throw her across the kitchen floor.”
The plaintiff told the police that the defendant had physically assaulted her in front of their two children.
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She also told officers that her husband had assaulted her on several prior occasions. The defendant was arrested and charged with assault and battery on a disabled person,
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and assault and battery on a family member. The following day the defendant was served with an abuse prevention order issued by a judge of the Boston Municipal Court pursuant to G. L. c. 209A. The defendant was ordered to vacate the marital home, surrender custody of the children to the plaintiff, refrain from contacting and abusing the plaintiff and their children, and stay away from the oldest childs school. As twice modified, the one year order was scheduled to expire on March 26, 2019.
2. Extensions of the order. On March 26, 2019, following a hearing attended by both parties, a second judge extended the order to March 25, 2020, at the plaintiffs request. That order was administratively extended to May 5, 2020, due to the COVID-19 pandemic. The clerks office was unsuccessful in its attempt to serve the defendant with the new order and notice of the next hearing by mail. Court staff telephoned the defendant the day before the hearing and left a message instructing him to call the court, but the defendant did not respond. Nor did the defendant respond to a similar message on the day of the hearing. Following the hearing, attended by the plaintiff and her counsel, a third judge extended the order for another year to May 5, 2021.
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3. Permanent order. On April 29, 2021, the plaintiff filed a motion requesting that the abuse prevention order be made permanent. A copy of the motion was mailed to the defendant at the Charlestown address. The defendant did not file an opposition to the motion or appear at the hearing, which was held by videoconference, on May 5, 2021. Following the hearing, a fourth judge issued a permanent abuse prevention order.
The next day, the defendant filed a motion stating that he “was never notified [of] where to call for [the] hearing,” and that “the order was [also] extended [on May 5, 2020] without [him] being able to defend [himself].” The defendant concluded the motion by stating “I humbly request to see a judge to plead my case.”
A hearing on the defendants motion was held by videoconference on May 20, 2021, before the judge who had issued the original abuse prevention order. The defendant appeared pro se and testified that he never received notice of the hearing on the request to make the order permanent. He also testified that he (1) filed for a divorce from the plaintiff in 2019, and the divorce case was ongoing, (2) did not live in Boston, and (3) wanted nothing to do with the plaintiff. He denied that he had assaulted the plaintiff and claimed that the plaintiff harassed and abused him. Finally, the defendant testified that the permanent order would adversely affect his employment.
The judge asked the plaintiff to explain why she needed a permanent abuse prevention order. The plaintiff testified that she feared for her safety based on the 2018 assault and the defendants history of abusive behavior. She further told the judge that the defendant had violated the order on prior occasions. She acknowledged that she had not seen the defendant in person for over a year and that the last time he had touched her was three years earlier in 2018. At the conclusion of the hearing, the judge vacated the permanent order without making factual findings and issued a temporary order that expired on November 21, 2021.
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Discussion. Where a defendant seeks a modification or termination of an abuse prevention order, the defendant “must show by clear and convincing evidence that, as a result of a significant change in circumstances, it is no longer equitable for the order to continue because the protected party no longer has a reasonable fear of imminent serious physical harm” (quotation omitted). Cordelia C. v. Steven S., 95 Mass. App. Ct. 635, 639 (2019). The plaintiff argues that the judge abused his discretion when he vacated the permanent order without any evidence of changed circumstances. We agree that the defendant failed to offer proof of changed circumstances and therefore failed to meet the burden of proof for a motion to terminate or modify an abuse prevention order. For the reasons that follow, however, we conclude that the judge treated the defendants motion as a request for rehearing on the plaintiffs motion for a permanent order, rather than as a motion for termination or modification.
Although the defendant filed the Trial Court form motion captioned “Motion To Modify or Terminate Abuse Prevention Order,” we rely on the substance of the motion rather than the caption. See Commonwealth v. Williams, 96 Mass. App. Ct. 610, 613 n.5 (2019). Here, the defendant sought an opportunity to “see a judge to plead my case” because “I was never notified [of] where to call for hearing.” The defendant did not claim changed circumstances. Indeed, because the permanent order had issued only one day earlier, circumstances could not have changed significantly.
At the hearing on the motion, the judge did not inquire about changed circumstances. Rather, he asked questions about the nature of the parties’ relationship and the frequency of their contact. He allowed the defendant to testify regarding the assault underlying issuance of the original order. Such evidence would not have been relevant at a hearing regarding the termination or modification of an abuse prevention order. See MacDonald v. Caruso, 467 Mass. 382, 388 (2014). After explaining that he was “[moving] forward to the substantive issues,” the judge asked the plaintiff to “[t]ell me why you believe you need a permanent restraining order, please.” The judge then allowed plaintiffs counsel to conduct a direct examination of the plaintiff regarding the initial assault in 2018. Even plaintiffs counsel appears to have believed the judge was rehearing the motion for a permanent restraining order because her argument addressed the plaintiffs fear rather than changed circumstances. For these reasons, it is apparent that the judge treated the defendants motion as a request for rehearing and then held a de novo hearing on plaintiffs motion for a permanent abuse prevention order.
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“At a hearing to extend a 209A order, the burden is on the plaintiff to [prove] ․ by a preponderance of the evidence ․ [that] the plaintiff [is in] ․ reasonable fear of imminent serious physical harm [quotation omitted].” S.V. v. R.V., 94 Mass. App. Ct. 811, 813 (2019). If the extension request is based on past physical abuse, as it was in this case, “the failure of the plaintiff to have an objectively reasonable fear of imminent serious physical harm does not by itself preclude extension of an abuse prevention order. Faced with an extension request in such a circumstance, the judge must make a discerning appraisal of the continued need for an abuse prevention order to protect the plaintiff from the impact of the violence already inflicted.” Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014). We review the judges ruling on a motion for a permanent restraining order for abuse of discretion. See McIsaac v. Porter, 90 Mass. App. Ct. 730, 735 (2016).
Here, the judge apparently credited the evidence that the plaintiff continued to fear the defendant based, in large part, on the 2018 assault.
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However, there was also evidence that the parties had little contact with each other. They were divorcing, did not live near each other, and saw each other only to facilitate visitation with the children. Where the plaintiff acknowledged that she had not seen the defendant in person for over a year and the defendant had not touched her in over three years, there was no abuse of discretion in denying the request for a permanent abuse prevention order, and instead extending it for six months.
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Extension order dated May 20, 2021, affirmed.
FOOTNOTES
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. The parties also had a one year old son.
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. The plaintiff informed officers that she was legally blind and provided officers with an MBTA Blind Access Card.
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. The court mailed the defendant the new order, but it was returned. The order was mailed again to an address in Charlestown on May 26, 2020 (the Charlestown address), which the defendant later acknowledged was his mothers home, and his last and usual address.
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. We were advised at argument that after a hearing on November 19, 2021, which both parties attended, the abuse prevention order was not extended.
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. We see no abuse of discretion in the judges decision to allow the request for rehearing. Motions for rehearing are treated as motions to alter or amend a judgment pursuant to Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), see Slade v. Ormsby, 69 Mass. App. Ct. 542, 545 n.8 (2007), and are reviewed for abuse of discretion. See R.W. Granger & Sons v. J & S Insulation, Inc., 435 Mass. 66, 79 (2001).
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. Our review is hampered by the absence of factual findings or other explanation by the judge.
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. The plaintiff also claimed that the judge abused his discretion when he extended the order for only six months over her objection without making specific findings that such an extension was reasonably necessary to protect the plaintiff from further abuse. See Moreno v. Naranjo, 465 Mass. 1001, 1003 (2013). This claim was rendered moot on November 19, 2021, when the plaintiffs request for an extension of the abuse prevention order was denied after a full hearing. Id. at 1001.