Vittone v. Clairmont

• Decision Date: 09 September 2005
• Docket Number: No. 03-P-1661.,03-P-1661.
• Parties: Deborah M. VITTONE v. Bruce J. CLAIRMONT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 258

834 N.E.2d 258

64 Mass. App. Ct. 479

Deborah M. VITTONE v. Bruce J. CLAIRMONT.

No. 03-P-1661.

Appeals Court of Massachusetts, Berkshire.

Argued February 18, 2005.

Decided September 9, 2005.

COPYRIGHT MATERIAL OMITTED

John M. Updegraph, III, Salem, for the defendant.

Present: PERRETTA, LENK, & DOERFER, JJ.

LENK, J.

After being notified that her former husband, the defendant, Bruce J. Clairmont, was about to be released from prison, where he had served eight years for raping and indecently assaulting two of their five children, the plaintiff, Deborah M. Vittone, acting pro se, filed a complaint for protection from abuse on September 16, 2002. Such an abuse prevention order had been in place before the defendant had been incarcerated, but it lapsed while he was in prison and she did not then seek to have it renewed. In the months after the ex parte restraining order issued on September 16, 2002, hearings took place at which both parties appeared, were sworn, and had counsel. Ultimately, a permanent restraining order was issued on January 20, 2003, from which the defendant now appeals. He contends, in essence, that because he had had no direct contact with the plaintiff or their children in the preceding eight years, and had not harmed or threatened to harm them in that period, the evidence failed to establish that he placed the plaintiff or their youngest son in reasonable fear of "imminent serious physical harm," as required by statute before an abuse prevention order may issue or be renewed. G.L. c. 209A, §§ 1, 3. We affirm.

Background. Accompanying the plaintiff's September 16, 2002, pro se complaint for a G.L. c. 209A order was her affidavit, which stated: "physical & sexual abuse throught [sic] marriage[.] I testified against him in Superior Court — was threatening during marriage, after separation & leading up to trial." The ex parte order that entered ordered the defendant not to abuse or contact the plaintiff, to stay at least twenty-five yards away from her, and not to contact the two youngest children, Rachel and Ronald.¹ The order was extended without modification on September 23, October 10, October 17, and November 15, 2002. The defendant appeared at the October 10 hearing but the judge extended the order without prejudice to allow him to consult with counsel.

Hearings of some length took place on October 17, 2002, and January 10, 2003, at which the parties were present, sworn, and represented by counsel.² At the conclusion of the January 10, 2003, hearing, the judge issued his ruling from the bench; he extended the abuse prevention order and made it permanent, modifying it only to reduce the stay away distance from twenty-five to ten yards and to require the defendant also to stay away from the children's respective schools.³

The facts before the judge were these.⁴ The plaintiff and the defendant had formerly been married and had five children together. On December 15, 1994, the defendant was convicted after a trial by jury of sixteen sexual abuse offenses against their son Nicholas and their daughter Rachel. He was convicted of two counts of rape of child with force as to Nicholas and one count as to Rachel, five counts of indecent assault and battery on a child under fourteen as to Nicholas and four counts as to Rachel, and four counts of open and gross lewdness with Rachel as his victim. He was sentenced to a nine- to twelve-year prison term, his convictions were upheld on appeal, Commonwealth v. Clairmont, 43 Mass.App.Ct. 1103, 681 N.E.2d 898 (1997), and he was released on parole in 2002 after serving eight years. The plaintiff and the two children, Rachel and Nicholas, had testified at trial.

The plaintiff had been physically and sexually abused throughout the marriage and the defendant had been threatening to her during the marriage, after their separation, and during the period of time leading up to the trial at the end of 1994. She had obtained one or more restraining orders against the defendant prior to his incarceration, which expired without her requesting extensions while he was in prison.

The parties were divorced during the defendant's imprisonment after protracted proceedings. The defendant wanted visitation with the children following his conviction, but the divorce decree ultimately provided that there be none. The plaintiff was put in financially straitened circumstances since she received no money from the defendant. While he was in prison, the defendant put marital assets out of the plaintiff's reach by transferring them through his accountant brother to members of his family. Following the divorce, the defendant apparently had some hand in having his mother put a lien on marital property that was to have been transferred unencumbered to the plaintiff pursuant to a court ordered property division. His failure to remove the lien resulted in a judgment of contempt, subsequently upheld on appeal. Clairmont v. Clairmont, 60 Mass.App.Ct. 1108, 800 N.E.2d 347 (2003).

Although the terms of his incarceration prohibited the defendant from contacting or corresponding with the plaintiff or their children,⁵ he used the Internet and print media to blame the plaintiff for having falsely accused him.⁶ It is undisputed that, other than for Probate and Family Court hearings, the defendant had no direct contact with the plaintiff or their children during his incarceration or in the brief period since his release from prison on parole. The plaintiff remains "deathly afraid" for herself and the children that the defendant will physically harm them. She applied for a G.L. c. 209A order directly upon learning of his imminent release from prison.

Analysis. The defendant maintains that the judge erred in entering a permanent abuse prevention order where the only evidence supporting a reasonable fear of serious physical harm was of criminal conduct that had occurred more than eight years before and did not involve as victims either the plaintiff or their youngest son, Ronald. The gist of his argument is that the statutory scheme, as construed by the case law, requires evidence of recent words or conduct that would themselves place a person in reasonable fear of imminent serious physical harm and that there was no such evidence here. He points in support to the Legislature's use of the present tense in relevant sections of the statute, which entitles only those "suffering from abuse" to apply for court ordered remedies to stop or prevent further abuse. See G.L. c. 209A, § 3. He also calls our attention to recent cases that construe G.L. c. 209A, emphasizing that the focus must be "on preventing imminent serious physical harm, not merely responding to past abuse." Dollan v. Dollan, 55 Mass.App.Ct. 905, 906, 771 N.E.2d 825 (2002). See Jordan v. Clerk of the Westfield Div. of the Dist. Ct. Dept., 425 Mass. 1016, 1017, 681 N.E.2d 276 (1997); Larkin v. Ayer Div. of the Dist. Ct. Dept., 425 Mass. 1020, 1020, 681 N.E.2d 817 (1997); Wooldridge v. Hickey, 45 Mass.App.Ct. 637, 639, 700 N.E.2d 296 (1998); Uttaro v. Uttaro, 54 Mass.App.Ct. 871, 873-874, 768 N.E.2d 600 (2002); Jones v. Gallagher, 54 Mass.App.Ct. 883, 888-889, 768 N.E.2d 1088 (2002); Carroll v. Kartell, 56 Mass.App.Ct. 83, 85-87, 775 N.E.2d 457 (2002); Szymkowski v. Szymkowski, 57 Mass.App.Ct. 284, 286-288, 782 N.E.2d 1085 (2003); Keene v. Gangi, 60 Mass.App.Ct. 667, 669-671, 805 N.E.2d 77 (2004).

Neither the evidence that was before the judge, however, nor the law that he was called upon to apply is circumscribed in the rigid manner that the defendant suggests. "`Preservation 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," including G.L. c. 209A. Mitchell v. Mitchell, 62 Mass.App.Ct. 769, 772-773, 821 N.E.2d 79 (2005), quoting from Champagne v. Champagne, 429 Mass. 324, 327, 708 N.E.2d 100 (1999). See Commonwealth v. Gordon, 407 Mass. 340, 346, 553 N.E.2d 915 (1990). Under G.L. c. 209A, § 3, as amended through St.1990, c. 403, § 3, "[a] person suffering from abuse from an adult or minor family or household member may" obtain a protective order against a defendant who has perpetrated such abuse. "Abuse" is defined by the statute as "(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, as amended by St.1990, c. 403, § 2.

Upon a finding of abuse, the statute provides several abuse prevention remedies from which a judge may choose, but relief on an initial complaint is limited to one year. General Laws c. 209A, § 3, also provides that if, upon expiration of the initial order, the plaintiff appears in court, "the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order." The judge's discretion at a renewal hearing has accordingly been characterized as "broad." Crenshaw v. Macklin, 430 Mass. 633, 635, 722 N.E.2d 458 (2000). See Iamele v. Asselin, 444 Mass. 734, 742, 831 N.E.2d 324 (2005).

"Abuse" has the same statutory definition in the context of initial, extended, and permanent orders, and there is no presumption or entitlement that an initial order will be continued or made permanent absent a showing of continued need. See Pike v. Maguire, 47 Mass.App.Ct. 929, 929, 716 N.E.2d 686 (1999); Jones v. Gallagher, 54 Mass.App.Ct. at 889, 768 N.E.2d 1088. In recognition of the fact that "in some cases, respondents will obey the initial order, and that obedience alone is not a ground for refusing an extension of the initial order," Iamele v. Asselin, 444 Mass. at 738, 831 N.E.2d 324, G.L. c. 209A, § 3, states that "[t]he fact that abuse has not occurred during the pendency of an order shall not,...