April 10, 2015
This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Gary Parziale, appeals fro a Probate and Family Court order extending an abuse prevention order, issued pursuant to G. L. c. 209A, which required him to refrain from contacting or abusing the plaintiff, his former wife, Carolyn Parziale, and their minor children, aged eleven and fifteen years at the time of trial. On appeal, the defendant contends that the evidence was insufficient to support a finding that the plaintiff had a reasonable fear of imminent serious physical harm as required by the statute, that such finding was contrary to the weight of the evidence, and that he was deprived of a fair trial because the judge was biased against him. We affirm.
Approximately one month after the plaintiff filed for divorce, she obtained an ex parte abuse prevention order against the defendant. In her affidavit submitted in support of her complaint for protection from abuse, the plaintiff stated, among other things, that she had been afraid of the defendant for several years and that she recently had been notified by an officer of the Kingston police department (where the defendant was employed) that the defendant had made a threat to her life.
The order initially was extended to March 10, 2011, at which point the order was modified to permit the defendant to have supervised visitation with the children, and then was extended for one year to March 9, 2012. During that latter period, the defendant made several unsuccessful motions to vacate the order, the parties obtained a judgment of divorce nisi incorporating the modified abuse prevention order, and the order was modified to expand supervised visitation. Before the order was set to expire on March 9, 2012, the defendant requested an evidentiary hearing. Following several continuances of the order pending the hearing, the same judge who issued the original order held an evidentiary hearing over four nonconsecutive days during March, April, and June, 2012. On June 29, 2012, the judge issued written findings of fact and extended the order to June 28, 2013. Following several motions to modify the order which were in part granted and in part denied, and a renewal hearing on June 28, 2013, the order was extended to June 27, 2014. The defendant has appealed from the extension of the order.
The question before us is whether the judge could have properly concluded, by a preponderance of the evidence, that the plaintiff had a reasonable fear of imminent serious physical harm to herself and her children at the time she requested the extension. M.B. v. J.B., 86 Mass.App.Ct. 108, 117, 13 N.E.3d 1009 (2014), citing Iamele v. Asselin, 444 Mass. 734, 736, 831 N.E.2d 324 (2005). In reviewing a request for extension the judge is to consider " the totality of the conditions that exist at the time that the plaintiff seeks the extension, viewed in the light of the initial abuse prevention order." Iamele v. Asselin, supra at 741. The defendant claims that the plaintiff did not meet her burden because she produced no credible evidence of a continuing reasonable threat to her safety or security, nor to that of their children. While the defendant does not dispute that he made threats concerning the plaintiff to his coworker, he maintains that those statements were an isolated incident and contends that he never posed and does not currently pose a threat to his children. We disagree.
At the hearing, the plaintiff, while not under oath, informed the judge that she believes the defendant poses a continuing threat of harm to her and her children because: he made a threat to her life; he suffers from multiple emotional disorders including posttraumatic stress disorder; he does not recognize boundaries; his temperament is such that he is unable to interact appropriately with their elder son who experiences neurological disabilities; and he neither acknowledges his conduct nor takes responsibility for the serious nature thereof. Furthermore, the judge observed that the defendant failed to demonstrate a change in circumstances since the initial order. The evidence was sufficient for the judge to extend the abuse prevention order with respect to both the plaintiff and the minor children. For the reasons stated we also decline to conclude that the judge's decision was contrary to the weight of the evidence.
Finally, the defendant argues that judicial bias -- namely, antagonism -- operated so as to deprive him of a fair and impartial trial in violation of due process of law. On August 7, 2012, he filed a motion to recuse in which he made general allegations that the judge had " displayed a predisposition against the Defendant" by making " totally unbalanced . . . findings/judgment." The motion was denied without any explanation. We discern no support in the record for the defendant's allegations of judicial bias and therefore reject the defendant's claim without discussion. In any event, the defendant did not appeal from this order.
Order dated June 28, 2013, extending abuse prevention order, affirmed.
Vuono, Milkey & Blake, JJ.