Heard: November 2, 2018.
for protection from abuse filed in the New Bedford Division
of the District Court Department on November 7, 2016.
motion to modify an abuse prevention order was heard by
Bernadette L. Sabra, J.
Margaret Drew for the plaintiff.
D. Ainsworth for the defendant.
Present: Wolohojian, Hanlon, & Ditkoff, JJ.
plaintiff appeals from a District Court order modifying the
terms of a G. L. c. 209A abuse prevention order. The issue
presented, essentially, is the standard of proof demanded
when a party seeks to modify an existing restraining order.
As we explain below, we conclude that the answer to that
question depends upon the status of the existing order, the
nature of the modification sought, and, in some cases,
whether the plaintiff or the defendant seeks the
modification in this case permitted the defendant, the
plaintiff's father (father), to reside in the basement
apartment in a house he had sold to the plaintiff (daughter)
thirteen years earlier. The modification also ordered the
father to "arrange for separate utilities" and to
refrain from entering the daughter's upstairs unit. On
the facts of this case, we see no abuse of discretion in the
modification judge's decision to modify it as she did.
the underlying facts and the procedural background here are
somewhat confusing. The father was eighty-seven years old at
the time of the original abuse prevention order in 2016. In
2003, the daughter bought the house at 14 Milton Street,
South Dartmouth (house), from the father by assuming the
existing mortgage. The house had two units - a basement
apartment and an upstairs unit. According to the father, the
parties orally agreed that he could live in the basement
apartment rent-free for the rest of his life. The daughter
lived in the upstairs unit. On August 12, 2016, the daughter
served the father with a notice to quit. When the father
refused to leave the house, the daughter initiated eviction
proceedings in the Housing Court. On August 3, 2017, a judge
of the Housing Court entered judgment for the father on the
daughter's complaint for possession.
on November 7, 2016, the parties had sought and received
mutual abuse prevention orders. Only the daughter's order
against the father is at issue here, but we discuss the
father's order against the daughter to give a complete
picture. The daughter obtained an order against the father,
ordering him not to abuse her, not to contact her, and to
stay at least twenty-five yards away from her; paragraph
three of the order was crossed out, and the father was not
ordered to leave and stay away from the house. At the same
time, the father obtained his own order against the daughter,
in which the judge ordered the daughter not to abuse the
father, not to contact him, to stay at least twenty-five
yards away from him, and to vacate and stay away from the
house in compliance with paragraph three of the
order. Both parties were present when the
orders were issued for one year, that is, until November 6,
2017. A notation on each of the orders states, "BOTH
PARTIES PRESENT/BOTH PARTIES ARRESTED." See note 7,
infra. On June 6, 2017, the father's order was
modified at the daughter's request, vacating paragraph
three and permitting her to return to live in the house, that
is, in the same premises as the father.
events that led to the issuance of the mutual restraining
orders on November 7, 2016, are somewhat
unclearand, if the judge made the required
findings for issuing mutual orders, they do not appear in
this record. As a result, we are left with few
facts on which to base our decision.
to a memorandum the daughter filed in support of her
application for the extension of the abuse prevention order,
"[t]he order against [the father] was entered after
police witnessed [the father] pushing [the daughter] out the
front door." There are other conclusory and very general
allegations of a history of the father abusing the daughter,
but there is nothing specific, and each allegation was made
as a representation of counsel.' When the parties
appeared before the court on November 6, 2016, the mutual
orders were issued, with, as described, supra, the
daughter ordered to vacate and stay away from the house. In
December, 2016, ...