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C.R.S. v. J.M.S.

Appeals Court of Massachusetts, Barnstable

December 20, 2017

C.R.S.
v.
J.M.S.

          Heard: March 1, 2017.

         Complaint for protection from abuse filed in the Falmouth Division of the District Court Department on May 29, 2016., A motion to extend a protective order was heard by Don L. Carpenter, J.

          James R. McMahon, III, for the defendant.

          Present: Hanlon, Blake, & Neyman, JJ.

          HANLON, J.

         The defendant appeals from the issuance of an abuse prevention order pursuant to G. L. c. 209A, arguing that both the ex parte order and the extended order after notice were wrongly issued.[1] We affirm the order after notice and dismiss the appeal from the ex parte order as it has been superseded by the extended order after notice that was issued properly.

         Background.

         On May 29, 2016, a District Court judge, on call for emergency matters, issued an emergency ex parte abuse prevention order (ex parte order) pursuant to G. L. c. 209A, § 5, ordering the defendant not to abuse the plaintiff; not to contact her, directly or indirectly; and to stay fifty yards away from her. The defendant also was ordered to vacate and stay away from the plaintiff's residence.[2]

         Two days later, on May 31, 2016, a different judge held a hearing after notice, following the defendant's arraignment on a criminal charge for the incident that gave rise to the ex parte order. Both the defendant, who was represented by counsel, and the plaintiff testified at the hearing. The plaintiff told the judge that the defendant had been emotionally abusive for eleven years and that she believed that he had a drinking problem. She said that she was "scared for [herself] and for [her] daughter."

         The plaintiff recounted at least two incidents of physical abuse. In one incident the previous summer, while they were on vacation in the State of Washington, the defendant had "pushed [her] down, pushed [her] against a wall, " as "he [had] many times before that." In the other incident, the two were arguing verbally; she explained, "[T]hen that morning I said I was going to leave. And he told me I couldn't take [their daughter]. And I went down the hallway to get some things. And he grabbed me and pushed me against the wall . . . ." She then telephoned the police and the police responded. At that time she applied for and was granted the ex parte order from an on-call judge.

          The police later placed the defendant under arrest at the police station where, he later testified, he had gone to learn about his rights, as an unmarried father, with respect to his daughter.

         At the hearing, the defendant denied that there had been any physical abuse, although he acknowledged that the relationship had been "stressful." The judge then asked the defendant a series of questions and heard argument from defense counsel and from the plaintiff. At the end of the hearing, the judge extended the abuse prevention order for one year.

         Discussion.

          1. Order ...


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