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18-P-312 Appeals Court

CORDELIA C. vs. STEVEN S.1

No. 18-P-312.

Bristol. November 2, 2018. - July 22, 2019.

Present: Wolohojian, Hanlon, & Ditkoff, JJ.

Abuse Prevention. Protective Order. Practice, Civil, 

Presumptions and burden of proof, Standard of proof.

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.

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

 

1 The parties' names are pseudonyms.
2

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 eightyseven 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 
3

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 

 

2 The Housing Court decision was included in the record 

appendix. "We may take judicial notice of the court papers 

filed in related cases." U.S. Bank Nat'l Ass'n v. Schumacher, 

467 Mass. 421, 425 n.8 (2014).

3 The judge also issued the statutorily required orders that 

each defendant not possess a gun, ammunition, a firearms 

identification card, or a license to carry a firearm.
4

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 unclear5

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 

 

4 The father was not present at that June 6, 2017 hearing. 

5 Neither party provided this court with the affidavit filed 

in support of their respective requests for an abuse prevention 

order. We note that it was the daughter's obligation, as the 

appellant, at least to provide the affidavit she had filed in 

support of her own complaint against the father. See Mass. 

R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019); L.L. v. 

M.M., 95 Mass. App. Ct. 18, 19 n.2 (2019).

6 See Sommi v. Ayer, 51 Mass. App. Ct. 207, 210-211 (2001) 

("Because the orders were 'mutual,' the judge . . . was required 

to make specific written findings of fact. It is obvious that 

the purpose of specific written findings is to ensure that the 

judge will carefully consider the evidence presented to 

determine who is the real victim and aggressor in an abusive 

relationship and if a mutual order is warranted"). 
5

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, after the mutual 

abuse prevention orders issued, the father was served with an 

eviction complaint that was the subject of the Housing Court 

action, described supra. 

On November 6, 2017, at the extension hearing that had been 

scheduled the year before, the daughter was present and the 

 

7 The daughter's brief in this court includes, without any 

record citation, an allegation that the father "threw [her] out 

of the front door of the premises and more recently picked up a

2 x 4 and rammed the door of the premises in an attempt to gain 

access." The brief also contains an allegation that the father 

abused the daughter when she was a child. 

8 As to the father's allegations against the daughter, there 

is even less. According to his lawyer, after the daughter 

"filed an eviction complaint against him," the father sought an 

abuse prevention order against the daughter; an ex parte order 

issued, but was vacated on November 4, 2016, when the judge 

declined to extend it. The father returned to the house; the

daughter was there, and "[t]he police ended up coming there. 

They ended up arresting the both of them on November 4, 2016." 

In fairness, as noted, the father's order against the daughter 

is not at issue here, but the underlying facts would have been 

helpful.
6

father was not.9 When the father did not appear at the extension

hearing, the judge extended the daughter's order against the 

father to November 5, 2018, modifying it by adding paragraph 

three to the original order, thus ordering the father to vacate 

and stay away from the house.

The father filed a motion to vacate the extension order 

immediately after he became aware of it, and there was a hearing 

on his motion on November 14, 2017, at which both parties were 

present.10 Following that hearing, the modification judge denied 

the father's motion to vacate the entire order, but, treating it 

as a motion to modify the extended order, modified it to permit 

the father to return to the basement apartment of the house. 

The judge left in place the no abuse and no contact portions of 

the extended order.11 In addition, the father was ordered "to 

arrange for separate utilities for his apartment" and to refrain 

 

9 The father was in Florida on November 6, 2017, and claims 

that he did not know about the extension hearing, despite the 

fact that both orders indicated that the next hearing date was 

November 6, 2017. The father's order against the daughter

apparently was terminated when the father did not appear by the 

end of the court day on November 6, 2017. 

10 According to his attorney, the father returned from 

Florida on November 8, 2017. As a result of the November 6, 

2017, extended order, the father could not gain entry to the 

house. He attempted to enter by force, and the police 

responded, ordering him to leave. 

11 However, in paragraph two, the no contact portion of the 

order, the judge reduced the distance for the father to stay 

away from twenty-five yards to three yards.
7

from entering the daughter's upstairs unit. The daughter

appeals from this modification of the extended order.

Standard of review. We review the judge's decision to 

modify the order for an abuse of discretion and ask whether "the 

judge made a clear error of judgment in weighing the factors 

relevant to the decision such that the decision falls outside 

the range of reasonable alternatives" (quotation and citation 

omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Modification of the c. 209A order. General Laws c. 209A, 

§ 3, provides that "[t]he court may modify its order at any 

subsequent time upon motion by either party." See Guidelines 

for Judicial Practice: Abuse Prevention Proceedings 

(Guidelines) § 6:04 (2011). A plaintiff who wishes to terminate 

an existing order, or to vacate certain parts of an existing 

order, thus reducing a restriction on the defendant, has no 

burden of proof. See Guidelines § 5:08. Although the 

Guidelines suggest that the judge should ask certain questions 

and perhaps refer the plaintiff to other resources, it is also 

clear that the plaintiff presumptively should be permitted to 

terminate the order "regardless of the reason given or the 

presence of children."12 Id.

 

12 The Guidelines caution that, if the judge determines 

"that terminating the abuse prevention order will place minor 

children in danger of physical harm or other abuse, the judge 
8

When an abuse prevention order is first considered, the 

plaintiff has the burden of proving, "by a preponderance of the 

evidence, that the defendant has caused or attempted to cause 

physical harm, committed a sexual assault, or placed the 

plaintiff in reasonable fear of imminent serious physical harm." 

MacDonald v. Caruso, 467 Mass. 382, 386 (2014). It follows from 

that principle that a plaintiff who seeks to modify an existing 

restraining order in a way that would impose an additional 

burden on the defendant has the burden of proving by a 

preponderance of the evidence that the modification is warranted 

to fulfill the purpose of the order, that is, to protect the 

plaintiff from abuse by the defendant.

By contrast, a defendant who seeks to terminate an existing 

order "must show by clear and convincing evidence that, as a 

result of a significant change in circumstances, it is no longer 

equitable for the order to continue because the protected party 

no longer has a reasonable fear of imminent serious physical 

harm." MacDonald, 467 Mass. at 382-383. For that reason, it 

follows that a defendant who wishes to modify an existing order 

in a way that changes it substantively to reduce the restraints 

upon the defendant also has the burden of showing by clear and 

convincing evidence that the provision at issue is no longer 

 

should advise the plaintiff that a report pursuant to G. L. 

c. 119, § 51A will be filed immediately." Guidelines § 5:08.
9

necessary to protect the plaintiff from reasonable fear of 

"imminent serious physical harm" or other abuse. Id.

This case is something of a hybrid. Initially, mutual 

orders were issued and the daughter was ordered to vacate the 

house. During the term of the original orders, she succeeded in 

modifying the father's order against her to permit her to return 

to the house, where the father was either living or, at a 

minimum, had access. At the November 6, 2017 extension hearing, 

only the daughter was present in court. It was at that time 

that the father first was ordered to vacate the house. As the 

daughter argues, the father had notice of the date of that 

hearing when the original orders were issued. However, she does 

not dispute that he was in Florida at the time of the extension 

hearing and that upon his return, when he learned that the order 

had been modified, he immediately sought to vacate that order. 

Those facts distinguish this case from MacDonald, where the 

defendant was present for two extension hearings until a 

permanent order issued and then waited almost ten years before 

seeking to terminate it. MacDonald, 467 Mass. at 384. In L.L.

v. M.M. 95 Mass. App. Ct. 18, 20-21, 25 (2019), this court 

followed MacDonald's teaching in a similar situation -- that is, 

we affirmed the denial of the defendant's motion to terminate a 

permanent order when the defendant, who was present when the 
10

permanent order was issued originally and did not appeal it, 

returned almost fourteen years later seeking to terminate it.

Here, by failing to attend the extension hearing, the 

father accepted that the order would be extended, and he 

forfeited any right to complain about the extension. On the 

other hand, he had no notice or reason to expect that the 

restrictions imposed by the extended order would be enlarged 

beyond those in the original order. Accordingly, the father was 

entitled to be heard, solely on the issue of enlarging the 

protections in the order when he requested such a hearing 

promptly upon learning of the enlargement. For that reason, in 

the present case, it was the daughter, the plaintiff here, who 

bore the burden to support the new provision. Cf. F.W.T. v.

F.T., 93 Mass. App. Ct. 376, 379 (2018); M.M. v. Doucette, 92 

Mass. App. Ct. 32, 38-39 (2017). Nothing that was presented at 

either the extension hearing on November 6, 2017, or the motion 

to vacate hearing on November 14, 2017, supported the contention 

that the modification was warranted to protect the daughter from 

abuse by the father, rather than to accomplish her desire to 

evict him. Accordingly, the modification judge properly 

modified the extended order.

Order dated November 14, 

2017, affirmed.