Home NELSON N. vs. PATSY P. [Note 1]

98 Mass. App. Ct. 78

April 15, 2020 - July 16, 2020

Court Below: Boston Municipal Court, Central Division

Present: Green, C.J., Henry, & Sacks, JJ.

Abuse Prevention. Protective Order. Due Process of Law, Abuse prevention. Practice, Civil, Findings by judge.

A Boston Municipal Court judge erred in failing to make specific written findings of fact as required by G. L. c. 209A, § 3, when the judge issued mutual abuse prevention orders pursuant to G. L. c. 209A (at a hearing on whether to extend an ex parte G. L. c. 209A abuse prevention order that the defendant had obtained against the plaintiff); further, the findings that the judge did issue more than five weeks later were not sufficiently specific in the circumstances presented, in that the "check-the-box" findings of the type the judge used on a court-issued form (with four boxes checked by the judge, each of which corresponded to a preprinted, generic statement about the case, and a fifth box that invited additional findings and further explanations that the judge left empty) could have sufficed if the judge had filled in the additional findings and explanations indicating the critical facts that he found. [80-82]

COMPLAINT for protection from abuse filed in the Central Division of the Boston Municipal Court Department on June 14, 2019.

The case was heard by Michael J. Coyne, J.

The case was submitted on briefs.

Jose Serpa for the plaintiff.

David Kete for the defendant.

SACKS, J. At a hearing on whether to extend an ex parte G. L. c. 209A abuse prevention order that the defendant in this case, Patsy P., had recently obtained against her former boyfriend, Nelson N., he sought a similar order against her. A judge of the Boston Municipal Court extended the order against Nelson but simultaneously issued the requested order against Patsy. The orders were essentially identical. That is, each party was ordered not to abuse or contact the other; to stay away from each other's residence

Page 79

and workplace; [Note 2] and to stay one hundred yards away from the other.

Patsy now appeals, arguing that the order against her was unwarranted and that the judge failed to make "specific written findings of fact," as G. L. c. 209A, § 3, expressly requires when a mutual order is issued. [Note 3] Focusing solely on the latter claim, we agree that the judge erred in failing to issue findings when required, and that the findings he did issue more than five weeks later were not sufficiently "specific" in the circumstances presented here. Accordingly, we remand the case for further proceedings as described infra.

Background. On May 27, 2019, police were called to Nelson's apartment building for a disturbance involving Patsy, who was then taken to a hospital. Patsy told police that Nelson had beaten her during an argument. A police report stated that she had sustained minor injuries. On June 10, Patsy obtained an ex parte G. L. c. 209A order against Nelson. The May 27 incident also led to an application for a criminal complaint against Nelson, on which a show cause hearing was scheduled for June 14. A hearing on the extension of Patsy's order against Nelson was set for that same day.

At the show cause hearing, a complaint issued against Nelson for assault and battery on a family or household member. Immediately after that hearing, Nelson filed a complaint seeking a G. L. c. 209A order against Patsy. At Nelson's request, a hearing on his complaint was scheduled for that afternoon at the same time as the extension hearing on Patsy's order.

During the hearing, at which both parties were represented by counsel, the parties testified at length, giving sharply conflicting accounts of their conduct on May 27 and their interactions before and after that date. Nelson suggested that if Patsy's complaint were dismissed, his complaint could be dismissed as well; in fact, counsel made that offer more than once. At the end of the hearing, the judge announced, "Based upon the credible evidence that I have heard from both parties, I'm satisfied that each of you [has] met the necessary standard. I'm going to issue you both orders." Patsy objected, noting that the statute required the judge to enter written findings before issuing mutual orders. The judge declined

Page 80

to delay either order but invited the parties to submit proposed findings within thirty days. Each party subsequently submitted detailed proposed findings by that deadline.

About ten days later, the judge checked four boxes on and signed a court-issued form entitled "Findings on Mutual Restraining Orders." Each of the four boxes corresponded to a preprinted, generic statement about the case, as set forth in the margin. [Note 4] A fifth box on the form corresponded to empty lines for "[a]dditional findings and further explanations." The judge did not check that box or make any additional findings at all specific to this case. Nor was there any indication of which testimony the judge credited at the hearing, despite the fact that the parties had testified to significantly different versions of the event. Patsy appealed. [Note 5]

Discussion. Because the order against Nelson had already issued, albeit on an ex parte basis, the reciprocal order that Nelson requested against Patsy was a "mutual" order. See Sommi v. Ayer, 51 Mass. App. Ct. 207, 210 (2001). [Note 6] This triggered the requirement of G. L. c. 209A, § 3 (statute), for "specific written findings." Patsy asserts, and we agree, that the judge's findings do not satisfy that requirement.

The statute provides, in pertinent part:

"A court may issue a mutual restraining order or mutual no-contact order pursuant to any abuse prevention action only if the court has made specific written findings of fact. The court shall then provide a detailed order, sufficiently specific to apprise any law officer as to which party has violated the order, if the parties are in or appear to be in violation of the order" (emphasis added).

Page 81

G. L. c. 209A, § 3. "[T]he 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." Sommi, 51 Mass. App. Ct. at 211. See Cordelia C. v. Steven S., 95 Mass. App. Ct. 635, 637 & n.6 (2019) (noting that absence of such findings complicates appellate review).

Although in other contexts an order may issue before any findings supporting that order, [Note 7] here the language of the statute makes clear that specific findings must precede or accompany a mutual restraining order. Such an order may issue only if the judge "has made" specific written findings; the judge shall "then" provide a detailed order. G. L. c. 209A, § 3. This manner of proceeding helps achieve the statutory purpose recognized in Sommi: to ensure close scrutiny of the often-conflicting evidence presented in order to determine "if a mutual order is warranted." Sommi, 51 Mass. App. Ct. at 211.

Even in an ordinary G. L. c. 209A case, an order should not issue "on the theory that it will do no harm, i.e., seems to be a good idea or because it will not cause the defendant any real inconvenience" (quotation and citation omitted). Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998). See id. at 638 (noting serious consequences that order may have for defendant). This principle takes on heightened importance when mutual orders are sought. As we recognized in Uttaro v. Uttaro, 54 Mass. App. Ct. 871, 875 (2002), inherent in such a situation is the risk that the request is retaliatory. It is thus all the more critical to ensure that the predicate conditions for the order are shown, rather than issuing it to "appease" a party or "as a prophylactic agent to prevent putative violations." Id. at 874-875.

"Check-the-box" findings of the type used here may assist in satisfying the requirement for findings, but they must be completed or supplemented so as to constitute case-specific findings regarding key disputed issues, typically including what "abuse" (as defined in G. L. c. 209A, § 1) the defendant has committed, and why an order to prevent further abuse by that defendant is

Page 82

warranted. See Sommi, 51 Mass. App. Ct. at 211. See also Guidelines for Judicial Practice: Abuse Prevention Proceedings § 6:07 (Sept. 2011) ("The findings of fact should provide the basis for the court's conclusion [emphasis added] that each party has proved, by a preponderance of the evidence, that he or she is suffering abuse by the other party and that the resulting abuse prevention orders are warranted"). Where, as here, a judge is simultaneously faced with one party's request for a mutual order and a decision on whether to extend an order obtained by the opposing party, the mutual order should not issue without specific written findings supporting both orders.

Although the statute requires that findings be prepared before an order is issued, we do not prescribe any particular level of detail or formality for these findings, recognizing that a mutual order may need to be issued promptly in order to serve its intended purpose. [Note 8] The form used in this case could suffice, if the blank for "[a]dditional findings and further explanations" were filled in with phrases indicating the critical facts the judge found. [Note 9] But absent the entry of specific findings, the order against Patsy must be vacated. See Sommi, 51 Mass. App. Ct. at 211.

Although Nelson's showing of his need for an order appears potentially insufficient on this record, [Note 10] we do not have the benefit of having seen and heard either party testify, as did the judge.

Page 83

Accordingly, rather than vacating the order ourselves as in Sommi, we remand the case to the Boston Municipal Court where, absent the entry of specific written findings supporting the order against Patsy, that order shall be vacated thirty days after the issuance of the rescript. Because Nelson did not appeal, we leave the order against him undisturbed. We deny his request for appellate attorney's fees.

So ordered.


[Note 1] The parties' names are pseudonyms.

[Note 2] Nelson also was ordered to stay away from Patsy's school.

[Note 3] Patsy also has appealed from an order denying her motion for reconsideration and from an order allowing Nelson's motion to reopen the hearing for the admission of exhibits. In light of our disposition, we do not address these orders.

[Note 4] The four statements were: (1) "Each party is a 'family or household member' as defined in G. L. c. 209A, § 1"; (2) "Sufficient evidence has been introduced before the Court that each party has abused the other as the term 'abuse' is defined in G. L. c. 209A, § 1"; (3) "Each party is genuinely in danger from the other and each party has proved that circumstance by a preponderance of the evidence"; and (4) "The protective terms imposed herein against each party are warranted to prevent further abuse and each party needs the protection of the Court."

[Note 5] Patsy had earlier timely appealed from the issuance of the order against her.

[Note 6] As in Sommi, 51 Mass. App. Ct. at 209-210, we use the phrase "mutual order" to include a G. L. c. 209A order requested by a defendant against a plaintiff who has already obtained an order, whether in the same or a separate action.

[Note 7] Even in ordinary G. L. c. 209A proceedings, although specific findings are always helpful to a reviewing court, we do not necessarily require them. See, e.g., Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006). "[W]here we are able to discern a reasonable basis for the order in the judge's rulings and order, no specific findings are required." G.B. v. C.A., 94 Mass. App. Ct. 389, 396 (2018).

[Note 8] We acknowledge the challenges that a busy trial court judge faces in making contemporaneous findings. We do not rule out the issuance of partial findings, if case specific, along with an indication that fuller findings will follow.

[Note 9] Patsy is mistaken in arguing that the findings themselves must also be sufficiently detailed to give guidance to law enforcement officers responding to reports of violations. That requirement applies to the order itself, not to the underlying findings. See Sommi, 51 Mass. App. Ct. at 211. We note, however, that the orders here -- containing, as they did, identical relief for each party, without reference to the mutual order -- also did not comply with the Guidelines for Judicial Practice: Abuse Prevention Proceedings § 6:07 ("All mutual orders must include a reference to the other order by court department, division and case number"). See id. at 210.

[Note 10] We note in particular that Nelson testified that, apart from one instance where Patsy had elbowed him on a plane, she had never "touched [him] in a bad way." He did not describe any specific threats she had made, and he testified essentially that, during the May 27 incident, she hugged him and would not let go, blocking him from leaving the apartment and causing him to fear that she would harm herself. During the hearing, Nelson's counsel repeatedly offered to agree to withdraw the request for a mutual order if Patsy would agree to vacate her order. In contrast, although the judge did not hear direct testimony from Patsy (relying instead on her affidavit in support of her complaint), the gist of her evidence was that Nelson threw her belongings at her, thereby injuring her, and also grabbed her forcibly and shoved her out of the apartment. In support, she offered photographs showing significant bruising and scratches, along with medical records.