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Cordelia C. v. Steven S.

Appeals Court of Massachusetts, Bristol

July 22, 2019

CORDELIA C.
v.
STEVEN S.[1]

          Heard: November 2, 2018.

         Complaint for protection from abuse filed in the New Bedford Division of the District Court Department on November 7, 2016.

         A motion to modify an abuse prevention order was heard by Bernadette L. Sabra, J.

          Margaret Drew for the plaintiff.

          Kevin D. Ainsworth for the defendant.

          Present: Wolohojian, Hanlon, & Ditkoff, JJ.

          HANLON, J.

         The 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.

         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.

         Background.

         Both 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.[2]

         Meanwhile, 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.[3] 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.[4]

         The events that led to the issuance of the mutual restraining orders on November 7, 2016, are somewhat unclear[5]and, if the judge made the required findings for issuing mutual orders, they do not appear in this record.[6] As a result, we are left with few facts on which to base our decision.

         According 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.[7]'[8] 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, ...


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