Mitchell v. Mitchell, No. 03-P-222 (MA 1/19/2005), No. 03-P-222.

• Decision Date: 19 January 2005
• Docket Number: No. 03-P-222.
• Citation: 62 Mass. App. Ct. 769
• Parties: MARY A. MITCHELL vs . JAMES H. MITCHELL, THIRD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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MARY A. MITCHELL vs. JAMES H. MITCHELL, THIRD.

No. 03-P-222.

Court of Appeals of Massachusetts.

Middlesex.

April 14, 2004.

January 19, 2005.

Abuse Prevention. Protective Order. Statute, Construction. Practice, Civil, Judicial discretion, Relief from judgment. Judgment, Relief from judgment.

Complaint for protection from abuse filed in the Middlesex Division of the Probate and Family Court Department on December 20, 2001.

A motion for reconsideration was heard by Dorothy M. Gibson, J.

Judith Farris Bowman for Mary A. Mitchell.

James H. Mitchell, III, pro se.

Present: Duffly, Kantrowitz, & Green, JJ.

DUFFLY, J.

Six months after Mary Mitchell obtained a G. L. c. 209A abuse prevention order against her husband, James Mitchell, a judge of the Probate Court vacated the order on the husband's motion seeking to reconsider or vacate it. We consider in this appeal by the wife the appropriate standard for deciding a motion to reconsider or vacate a c. 209A order, and whether the husband's evidence was sufficient to support the judge's decision. We conclude that it was not and, therefore, that it was error to vacate the order.

1. Background. After suffering from more than ten years of verbal and physical abuse inflicted by the husband, the wife, on December 20, 2001, filed a complaint for protection from abuse under c. 209A, supported by her affidavit and three police reports.¹ An ex parte abuse prevention order was issued that same day directing the husband to (among other things) refrain from abusing or contacting the wife. The husband appeared pro se at a hearing on January 3, 2002, the date on which the initial order was fixed to expire, and after hearing, the order was extended for one year, to January 3, 2003. The husband did not appeal from the extended order.

On June 20, 2002, the husband filed a verified motion requesting the court "to reconsider or vacate" the order dated January 3, 2002; in the motion he stated that the wife had contacted him repeatedly by telephone since the issuance of the order and had spent time with him in Los Angeles while attending the funeral of his mother.² In the husband's view, the wife's repeated "contact[s]" with him and her "successful requests" to spend time alone with him while they were in Los Angeles "clearly indicate that she does not fear physical or verbal abuse from [him] and did not fear such abuse in the past." The husband requested that the abuse prevention order be vacated retroactive to January 3, 2002.

A hearing, at which no testimony was taken, was conducted by the same judge who had issued the order of January 3, 2002. The judge had before her the husband's affidavit, the wife's verified opposition to the husband's motion,³ and an affidavit of the husband's sister filed by the wife which, in large part, corroborated the wife's description of events and statements concerning her fear of the husband.⁴

The motion to reconsider or vacate was marked "allowed" in the margin. No written findings were made, nor was any oral explanation given at the hearing.⁵ This appeal followed.⁶

2. Discussion. "[P]reservation of the fundamental human right to be protected from the devastating impact of family violence" is the public policy of this Commonwealth, reflected in numerous statutes addressing the problem of domestic violence.⁷ Champagne v. Champagne, 429 Mass. 324, 327 (1999). Litchfield v. Litchfield, 55 Mass. App. Ct. 354, 356 (2002). Cf. Custody of Vaughn, 422 Mass. 590, 595 (1996) (in which, in a somewhat different setting, the Supreme Judicial Court defined this fundamental right as nothing less than "the right to live in physical security, free from the fear that brute force will determine the conditions of one's daily life").

General Laws c. 209A sets out a statutory scheme intended to protect victims of abuse, as defined by the statute,⁸ through the issuance of abuse prevention orders.⁹ See Turner v. Lewis, 434 Mass. 331, 334 (2001) ("[v]iolence brought on by, or exacerbated by, familial relationships was the `mischief or imperfection to be remedied' by c. 209A"); C.O. v. M.M., 442 Mass. 648, 651 (2004); Jones v. Gallagher, 54 Mass. App. Ct. 883, 886 (2002).

Section 3 of c. 209A¹⁰ contemplates the possibility of modification of such orders "at any subsequent time upon motion of either party." It also refers to the vacating of orders, but provides that the fact abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient grounds for allowing an order to be vacated. See Brossard v. West Roxbury Div. of the Dist. Court Dept., 417 Mass. 183, 185-186 (1994); Commonwealth v. Rauseo, 50 Mass. App. Ct. 699, 709 (2001); Lonergan-Gillen v. Gillen, 57 Mass. App. Ct. 746, 750 (2003); Guidelines for Judicial Practice: Abuse Prevention Proceedings § 6.04 commentary, at 98 (Dec. 2000) ("Both parties have the right to ask the court to modify an existing order, by either increasing or decreasing the severity of the terms, or by terminating or vacating the order").

The husband's motion to reconsider or vacate may be construed to contain requests for two distinct forms of relief. First, the husband appears to assert in his motion that the wife's actions and conduct subsequent to the extension of the abuse prevention order indicate that she was not truthful when she stated in her affidavit and through counsel at the c. 209A hearing on January 3, 2002, that she was in fear of him. In the husband's view, this was new evidence that required that the c. 209A order be vacated retroactively from January 3, 2002, as the order should never have entered. The husband also asserts in his motion that the wife's actions and conduct during the pendency of the c. 209A order indicate that she is not presently in fear of him, showing that there is no ongoing need for the order, which should, accordingly, be terminated. Such an assertion seeks prospective relief from the c. 209A order.

We think that a request for either form of relief may be made pursuant to c. 209A, § 3. Chapter 209A does not, however, articulate any standard relative to requests to modify, vacate, or terminate an abuse prevention order. In considering the wife's argument that the order should not have been vacated, we address separately the husband's bases for relief and the standard appropriate to each request.

(a) Request to vacate c. 209A order retroactively. Where, as here, a party seeks through asserted "new evidence" to vacate retroactively an abuse prevention order, we think that principles analogous to those applicable to Mass.R.Dom.Rel.P. 60(b)(2) (1975) (hereinafter rule 60[b][2]), and to the identical Mass.R.Civ.P. 60(b)(2), 365 Mass. 828 (1974), provide a useful guide to judges deciding whether to grant the relief sought.¹¹

A request for relief from final judgments or orders under rule 60(b)(2) may be granted on the basis of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under [Mass.R.Dom.Rel.P.] 59(b)." Relief on the basis of newly discovered evidence under either rule 59 or rule 60(b)(2) requires the same showing. See Cullen Enterprises, Inc. v. Massachusetts Property Ins. Underwriting Assn., 399 Mass. 886, 894 n.17 (1987); VanAlstyne v. Whalen, 15 Mass. App. Ct. 340, 347, 349 n.3 (1983); Smith & Zobel, Rules Practice § 59.5 (1977 & Supp. 2003).

Applying the foregoing concepts, we think that a motion that seeks to vacate retroactively an order issued under c. 209A "on the ground of newly discovered evidence cannot properly be granted unless it is found that the evidence relied on was not available to the party seeking [relief] for introduction at the original trial by the exercise of reasonable diligence, and that such evidence is material not only in the sense that it is relevant and admissible but also in the sense that it is important evidence of such a nature" that it likely would have affected the result had it been available at the time. DeLuca v. Boston Elev. Ry., 312 Mass. 495, 497 (1942). See VanAlstyne v. Whalen, 15 Mass. App. Ct. at 349-351. See also Cullen Enterprises, Inc. v. Massachusetts Property Ins. Underwriting Assn., 399 Mass. at 894; Kelly v. Kelly, 12 Mass. App. Ct. 937, 938 (1981) (applying common-law principles of cases cited in DeLuca to motion for new trial on ground of newly discovered evidence in domestic relations proceeding); Smith & Zobel, Rules Practice § 59.5 (1977 & Supp. 2003).

Here, even if we were to assume that the wife's conduct subsequent to the issuance of the c. 209A order somehow constitutes newly discovered evidence (a doubtful proposition), that evidence served only as an after the fact challenge to the wife's credibility at the c. 209A hearing. It is settled that "a new trial will not ordinarily be granted on the ground of newly-discovered evidence which goes only to impeach the credit of a witness at trial." DeLuca v. Boston Elev. Ry., 312 Mass. at 500, quoting from Hopcraft v. Kittredge, 162 Mass. 1, 13 (1894); Blaikie v. District Attorney for the Suffolk Dist., 375 Mass. 613, 619 (1978); Commonwealth v. Sena, 441 Mass. 822, 831 (2004).¹² There is nothing in the record before us to support a departure from this general rule. Nor, as we shall discuss more fully, infra, was the husband's "new evidence" — of sporadic contacts with the wife during the pendency of the c. 209A order — such that it would likely have affected the result.¹³ See DeLuca v. Boston Elev. Ry., supra at 497; Swenson v. Wood, 12 Mass. App. Ct. 923, 924 (1981); Smith & Zobel, Rules Practice § 59.5 (1977 & Supp. 2003). The order to vacate was not justified on the basis of the husband's claim of newly discovered evidence.

(b) Request for relief from prospective application of the order. The husband's motion construed as a request for relief from prospective application of the abuse prevention order calls for a somewhat different analysis.¹⁴ Such a request falls generally into...