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L.L. v. M.M.

Appeals Court of Massachusetts, Barnstable

March 7, 2019


          Heard: October 11, 2018.

         Complaint for protection from abuse filed in the Orleans Division of the District Court Department on September 23, 2000.

          A motion to terminate an abuse prevention order, filed on September 6, 2016, was heard by Robert A. Welsh, III, J.

          Genevieve K. Henrique for the defendant.

          L.L., pro se.

          Present: Green, C.J., Hanlon, & Maldonado, JJ.

          HANLON, J.

         After a hearing, a District Court judge denied the defendant's motion to terminate a permanent abuse prevention order issued pursuant to G. L. c. 209A (209A order), [1] The defendant appeals, arguing that the judge abused his discretion because, in the defendant's view, he proved that there had been a significant change of circumstances and, as a result, the plaintiff no longer had a reasonable fear of physical harm from him. For that reason, he contends that it is no longer equitable for the 209A order to remain in place. We affirm.


         This case began with an emergency ex parte 209A order issued on September 23, 2000, a Saturday. See G. L. c. 209A, § 5. The judge ordered the defendant not to abuse the plaintiff, not to contact her directly or indirectly, and to stay one hundred yards away from her and her children. He also ordered the defendant to immediately surrender to the local police department all "guns, ammunition, gun licenses and FID [firearms identification] cards." An order providing essentially the same relief was issued ex parte by another judge in the District Court on the following Monday, September 25, 2000, and a hearing after notice was scheduled for October 2, 2000.

         At the time, the parties had been married for approximately two and one-half years. According to the plaintiff's affidavit filed in support of her complaint, [2] the defendant had threatened her in the past "that if [she] divorced him he would see [her] dead first. He ha[d] also been physically and sexually abusive of [her] in the time [they] were living together." On Saturday, September 23, the affidavit continued, the defendant stopped by the plaintiff's house and became argumentative with her and her older child. The plaintiff told him to leave, but he refused "and continued to argue and yell. Finally when both [of her] children, ages 7 and 11, and [she] told him to get out and never come back[, ] he became even more irate and grabbed a dozen roses out of a vase," hit her in the face with them, and then left the house. She went outside and threw the roses at his car. "He then spun tires and gravel (with many neighborhood children present at [the] side of [the] driveway) and went out of the driveway." The plaintiff then returned to her house, "[a]t which time he returned into [the] driveway and aimed his vehicle at [her] 11 year old daughter and tried to run her over. This was witnessed by many children and adults across from [her] home." She continued, "We are all quite afraid of what he may attempt to do, if he has lost it enough to retaliate against a child with a vehicle."

         On the same day as the ex parte hearing, September 25, 2000, the defendant was arraigned in the District Court on charges of assault by means of a dangerous weapon and assault and battery by means of a dangerous weapon.[3] He was served in hand with a copy of the 209A order and a return of service was filed with the court on September 26, 2000.

         At the hearing after notice on October 2, 2000, the 209A order was extended until October 2, 2001; the face of the order indicates that the defendant was present, and the "no contact" provision of the order was amended to provide that "th[e] defendant remain 300 feet away from the plaintiff," as opposed to the one hundred yards provision specified in the emergency 209A order. In addition, the judge specified that "the order shall not be construed so as to prevent either party from using the ways of the town to enter or [leave] his or her home." On October 2, 2001, with both parties present, the 209A order was extended without modification until April 2, 2002.[4] On April 2, 2002, the 209A order was amended to reflect a change in the plaintiff's name, and the order was made permanent.[5]

         Approximately fourteen years later, on September 6, 2016, the defendant filed the motion at issue here, seeking to terminate the 209A order because of a change of circumstances. In his affidavit in support of the motion, the defendant represented that he had had no contact with the plaintiff since "on or about August, 2001." He now lives in Nevada and has been married to another woman since 2010. His current wife is from the Philippines and she has dual citizenship; the couple travel to the Philippines at least once a year. He is "stopped by U.S. Customs and Border Officials almost every trip" and "detained for approximately 45 minutes." Further, the defendant is employed as a commercial truck driver for a company that "performs a majority of its work on Federal Government worksites and for ...

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