Jordan v. Clerk of Westfield Div. of Dist. Court Dept.
Decision Date | 08 July 1997 |
Citation | 425 Mass. 1016,681 N.E.2d 276 |
Parties | & others. 1 Supreme Judicial Court of Massachusetts |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The case was submitted on brief.
Joseph Jordan, pro se.
RESCRIPT.
Abuse Prevention.
The petitioner, Joseph Jordan, unsuccessfully sought relief pursuant to G.L. c. 211, § 3, from the entry by the District Court of an order pursuant to G.L. c. 209A, and he appeals. It appears that trial court personnel did not timely provide Jordan with the tape recording of the c. 209A hearing, as he had requested, see Greco v. Suffolk Div. of the Probate & Family Court Dep't, 418 Mass. 153, 635 N.E.2d 243 (1994), Callahan v. Boston Mun. Court Dep't, 413 Mass. 1009, 604 N.E.2d 1287 1992), and neither the recording nor a transcript of the hearing may have been available to Jordan when he filed his G.L. c. 211, § 3, petition. After Jordan appealed from the single justice's ruling to the full court, we allowed his motion for fees to transcribe the tape recording of the c. 209A hearing. We have since received and reviewed the transcript. 2 We shall now address the merits of his appeal.
We conclude that the G.L. c. 209A complainant's testimony was insufficient to support the issuance of the G.L. c. 209A order against Jordan, who is the complainant's former husband and the father of her two children. While it is significant that the complainant testified that Jordan was serving prison sentences for convictions of kidnapping and assault and battery against her, she did not produce evidence to warrant a finding by a preponderance of the evidence that, in the time after he began his incarceration, the plaintiff's words or conduct, made by himself or through others, had reasonably placed her in fear of imminent serious physical injury. 3 See Smith v. Joyce, 421 Mass. 520, 522-523, 658 N.E.2d 677 (1995) ( ); Commonwealth v. Robicheau, 421 Mass. 176, 181, 654 N.E.2d 1196 (1995) (). The complainant's fear that Jordan knew of her home and work addresses, or of the children's school address, does not constitute, without more, "abuse" as defined by G.L. c. 209A, § 1. Compare Robicheau, supra at 182-183, 654 N.E.2d 1196, and Commonwealth v. Gordon, 407 Mass. 340, 348-350, 553 N.E.2d 915 (1990), with Commonwealth v. Jacobsen, 419 Mass. 269, 273-274, 644 N.E.2d 213 (1995). Moreover, it is undisputed that Jordan was incarcerated during the entire time that the complainant alleges she had been placed in fear of imminent serious physical harm. Thus, the "imminence" of any serious physical harm is questionable and has not been proved on this record. See Smith v. Joyce, supra at 523 n. 1, 658 N.E.2d 677 ().
We conclude that the single justice ruled correctly on the papers before him. Howev...
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