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Reporter of Decisions,
C.O. [FN1] vs. M.M.
SJC-09271
September 8, 2004. - October 6, 2004.
Present:
Abuse Prevention. Statute, Construction. Due Process of
Law, Abuse prevention. Words, "Substantive dating
relationship."
Complaint for protection from abuse filed in the
Brockton Division of the District Court Department on January 29, 2004.
The case was heard by Joseph R. Welch, J., and a motion to
modify was heard by Lance J. Garth, J.
The
Jeffrey S. Beckerman for the defendant.
Elizabeth M. Clague for the plaintiff.
COWIN, J.
The defendant appealed from the issuance against him of an abuse
prevention order pursuant to G.L. c. 209A, § 4. We transferred the case to this
court from the
Background. We summarize the relevant and undisputed facts of
this case as set forth in the parties' briefs and pleadings. The defendant,
M.M., is a seventeen year old high school student accused of having sexually
assaulted a fifteen year old schoolmate. The plaintiff in this case, C.O., is
the mother of the young woman who was allegedly abused ("daughter").
Shortly after the alleged incident, the plaintiff filed a complaint and
supporting affidavit on behalf of her daughter and obtained an ex parte abuse
prevention order against the defendant pursuant to G.L. c. 209A, § 4. The
plaintiff's affidavit alleges that the defendant offered to drive the daughter
home from school and, along the way, stopped at his house, invited the young
woman inside, and then forcibly sexually assaulted her in his bedroom. The
defendant contests the occurrence of the incident.
One day after an ex parte emergency temporary abuse
prevention order was issued, see G.L. c. 209A, § 4, the defendant was arrested
on charges arising from the alleged assault. The defendant was arraigned on
these charges and subsequently released on bail. He was suspended from high
school as a result of the arrest.
After a hearing during which both parties were represented by counsel,
a judge of the Brockton District Court extended the abuse prevention order for
a period of one year. Defendant timely appealed the issuance of the order and
shortly thereafter filed a motion to suspend the order pending appeal. The
judge denied the defendant's motion to suspend the abuse prevention order
pending appeal, and the defendant timely appealed the denial of that motion as
well. Subsequently, the district attorney's office entered a nolle prosequi on
all pending charges related to the alleged sexual assault, and the defendant
immediately filed a motion to modify the abuse prevention order and requested
an evidentiary hearing on his earlier motion to vacate. A different District
Court judge denied the defendant's motion to modify, and the defendant once
again timely appealed.
Discussion. We first consider whether the plaintiff's daughter
and the defendant were engaged in a "substantive dating relationship"
as defined in G.L. c. 209A, § 1. We then discuss whether
the defendant's due process rights were violated during the hearing on the
question of continuing the temporary order.
1. Substantive dating relationship. General Laws c. 209A, § 3,
provides a range of protections and remedies for those "person[s]
suffering from abuse from an adult or minor family or household
member...." Included within the definition of "family or household
members" are those individuals who are or have been engaged in a
"substantive dating or engagement relationship." G.L. c. 209A, § 1 (e
). [FN3]
The defendant maintains that the plaintiff failed to show the
existence of a "substantive dating relationship" between him and the
plaintiff's daughter, and that, consequently, the abuse prevention order
against him was improperly issued and extended. The defendant further asks this
court to clarify the meaning of "substantive dating relationship" in
G.L. c. 209A, § 1. Because the statute enumerates four factors to be considered
in determining the existence of a "substantive dating relationship,"
there is sufficient language in the statute to enable judges to make informed
and consistent determinations. We need not add to this language by
interpretation. We believe that the Legislature drafted the statute with
purposeful flexibility in its definitions, and we
acknowledge that intent by declining the invitation to add elements to the
Legislature's definition. The existence of a "substantive dating
relationship" is to be determined on a case-by-case basis applying the
factors set forth in G.L. c. 209A, § 1 (e ) (1)-(4), while keeping in
mind the statute's protective purpose.
The Legislature enacted G.L. c. 209A in 1978 to address the problem of
domestic violence. St.1978, c. 447, § 2. See Turner v. Lewis, 434 Mass.
331, 332 (2001), quoting Commonwealth v. Gordon, 407 Mass. 340, 344
(1990) (legislative purpose of G.L. c. 209A is to provide "a statutory
mechanism by which victims of family or household abuse can enlist the aid of
the State to prevent further abuse"). Since its inception, G.L. c. 209A
has protected victims exclusively from abuse by "family or household
members." G.L. c. 209A, § 3. However, the Legislature has consistently
broadened the definition of "family or household member," and
consequently expanded the scope of G.L. c. 209A's coverage. In 1978, the
statute defined "[f]amily or household member" as a "household
member, a spouse, former spouse or their minor children or blood
relative." St.1978, c. 447, § 2. In 1986, the definition of "family
or household member" was expanded to include a "former household
member" and a "person who, though unrelated by blood or marriage, is
a parent of the plaintiff's minor child." St.1986, c. 310, § 15. In 1990,
the Legislature once again amended the definition of
"family or household member" to its present form. [FN4] St.1990, c.
403, § 2. General Laws c. 209A, § 1, now defines "[f]amily or household
members" as "persons who: (a) are or were married to one another; (b)
are or were residing together in the same household; (c) are or were related by
blood or marriage; (d) having [sic ] a child in common regardless of
whether they have ever married or lived together; or (e) are or have been in
a substantive dating or engagement relationship ..." (emphasis added).
Rather than establishing a rigid test to be applied to all
relationships, the statute directs courts to "adjudge[ ]" the
existence of substantive dating relationships by considering four factors:
"(1) the length of time of the relationship; (2) the type of relationship;
(3) the frequency of interaction between the parties; and (4) if the
relationship has been terminated by either person, the length of time elapsed since
the termination of the relationship." G.L. c. 209A, § 1 (e )
(1)-(4). The Legislature thus anticipated that the existence or absence of a
"substantive dating relationship" would be determined on a
case-by-case basis. It is not our role to impose additional constraints on the
interpretive instructions provided by the Legislature. See Commonwealth v.
Boucher, 438 Mass. 274, 278 (2002) (declining to further limit phrase
"likely" in G.L. c. 123A, and reasoning
"[i]f the Legislature had intended to restrict 'likely' to a usage less
broad than its commonly understood meaning, the Legislature would have done
so"). See also Sorgman v. Sorgman, 49 Mass.App.Ct. 416, 418 (2000)
(declining to imply limiting factors to plain statutory language of G.L. c.
209A). Had the Legislature intended to further limit the scope of
"substantive dating or engagement relationship," it would have
included any such limitation in the text of the statute.
This court has had only one prior opportunity to consider the meaning
of "substantive dating relationship" within G.L. c. 209A, § 1 (e
). See Brossard v. West Roxbury Div. of the Dist. Court Dep't, 417
While the four statutory factors enumerated in G.L. c. 209A, § 1 (e
) (1)- (4), are the primary guidance for courts when making case-specific
determinations about the existence of a "substantive dating
relationship," courts should also consider the underlying purpose of G.L.
c. 209A. See Hanlon v. Rollins, 286 Mass. 444, 447 (1934) (statutory
language is to be "interpreted according to the intent of the Legislature
ascertained from all its words construed by the ordinary and approved usage of
the language, considered in connection with the cause of its enactment, the
mischief or imperfection to be remedied and the main object to be
accomplished"). See also Turner v. Lewis, supra at 333, quoting Telesetsky
v. Wight, 395
On the other hand, G.L. c. 209A is denominated a "domestic
relations" statute within the General Laws. See Part II, Title III of the
General Laws, entitled "Domestic Relations" (including, inter alia,
marriage, divorce, and child custody statutes). The Legislature did not intend
the statute to apply to acquaintance or stranger violence, nor did it intend to
cover the myriad of relationships that exist or even to all those which might
be considered "dating" relationships. See
Dating is inherently personal and idiosyncratic, and relationships
exist in endless variety. It would be unproductive to place a numerical quota
on the number of "dates" that constitute a "substantive dating
relationship," just as it would be inappropriate to mandate a minimum
duration for a relationship to fall within G.L. c. 209A. Furthermore, any
attempt by this court to elaborate on the meaning of "substantive dating
relationship" by adding adjectives to an already well-designed statutory
definition would be counterproductive. Such an effort
might spawn additional litigation and result in unnecessary intrusions by
courts into the precise nature of parties' interactions. See Judicial
Guidelines § 1:01 commentary ("any attempt to explore the nature of the
underlying relationship between the parties can inappropriately shift the focus
of the proceedings away from the issue of protection. Such a shift of focus can
weaken the plaintiff's resolve to seek protection ...").
The plaintiff bears the burden of proving by a preponderance of the
evidence that the parties were engaged in a "substantive dating
relationship" within the meaning of G.L. c. 209A, § 1. See Frizado v. Frizado,
420 Mass. 592, 596, 597 (1995) ("The burden is on the complainant to
establish facts justifying the issuance and continuance of an abuse prevention
order," and "plaintiff must make a case for relief by a preponderance
of the evidence.") See also Judicial Guidelines § 1:02 commentary par.
(D). Here, the plaintiff failed to sustain her burden. During the hearing on
the question of continuing the temporary order, the plaintiff testified that
the defendant had "been over to the house and he ha[d] taken [the
daughter] to the movies." When asked about the nature of the relationship,
the mother testified that she was "really not sure. They did, you know, go
out." Plaintiff's counsel asserts that the plaintiff's uncertainty related
only to the then-existing state of the dating relationship, not
its past existence. Even so, the judge's finding of a past
"boyfriend/girlfriend" relationship is not supported by the
plaintiff's testimony, and the relationship between the parties does not meet
the statutory standard of a "substantive dating relationship." The
plaintiff's counsel also contends that the judge properly made a credibility
assessment of the plaintiff, who was the sole witness at the hearing, that this
court should not disturb. See Adoption of Larry, 434
The judge committed an error of law in relying on improper factors as
the basis for his finding that the parties were engaged in a "substantive
dating relationship." General Laws c. 209A, § 1 (e ) (1)-(4),
directs judges to consider four factors. The judge in this case ignored these
factors and instead improperly relied upon judicially constructed factors,
including "the fact that a criminal matter [sic
] has issued," and "the age of the alleged victim." According to
the judge, the determination was based "primarily" on the fact that a
criminal case was pending. There was no testimony as to the length of time of
the relationship or the frequency of the parties' interactions, as required by
G.L. c. 209A, § 1 (e ) (1), (3). The plaintiff contends that the judge
properly exercised his broad discretion in according weight to these
nonstatutory factors. While judicial discretion and flexibility are appropriate
in applying the statutory definition of "substantive dating
relationship," they do not relieve a court of its obligation to apply the
legislative criteria.
Although the plaintiff asserts that the judge could draw an adverse
inference from the defendant's failure to testify, this alone does not cure the
defects in the judge's analysis. "An inference adverse to a defendant may
be properly drawn ... from his or her failure to testify in a civil matter such
as this, even if criminal proceedings are pending.... However, inference cannot
alone meet the plaintiff's burden.... [A] defendant's failure to testify cannot
be used to justify the issuance of an abuse prevention order until a case is
presented on other evidence." (Citations omitted.) Frizado v. Frizado,
supra at 596.
Since there is insufficient evidence in the record
to support a finding of a "substantive dating relationship" between
the defendant and the plaintiff's daughter, the abuse prevention order is
vacated, and this case could be disposed of without further discussion.
However, given the importance and merit of the defendant's due process claim,
which both parties briefed, we choose to address it below.
2. Due process claim. The defendant on appeal claims that he
was improperly denied the opportunity to present evidence and cross-examine
during the hearing on the question of continuing the temporary order. There is
no question that the defendant was denied a meaningful opportunity to be heard.
This violated statutory rights given him expressly by G.L. c. 209A, § 4; apart
from the statute, his constitutional right to due process was denied him.
General Laws c. 209A, § 4, requires a hearing "on the question of
continuing the temporary order ... no later than ten court business days after
such [temporary] orders are entered." The statute explicitly states:
"[t]he court shall give the defendant an opportunity to be heard on the
question of continuing the temporary order."
The record reveals that the defendant was not given any opportunity to
present or to cross-examine witnesses. The defendant's counsel explicitly
argued for the right to call witnesses on at least four occasions. The
defendant was never permitted to present evidence. [FN5] The fact that defense
counsel was permitted to argue on behalf of his client does not substitute for
the opportunity to present evidence through the testimony of witnesses, to
cross-examine adverse witnesses, and to have the judge take this testimony and
cross-examination into account in making his findings.
The plaintiff next claims that even if the defendant were denied the
opportunity to call and cross-examine witnesses, those denials constituted a
proper exercise of judicial discretion. While a defendant's right to present
evidence is not absolute, and while a judge may limit cross-examination for
"good cause" in certain situations, see Silvia v. Duarte, 421
Mass. 1007, 1008 (1995); Frizado v. Frizado, supra at 597-598, judicial
discretion is not "unlimited," and "each side must be given a
meaningful opportunity to challenge each other's evidence." Frizado v.
Frizado, supra at 598 n. 5. Proceedings held pursuant to G.L. c. 209A are
no different than any other adversarial hearings in that each party has a right
to present evidence, and the moving party must satisfy the burden of proof and
subject its witnesses to cross examination. See Frizado
v. Frizado, supra at 597 ("The practice in civil actions ... is to
permit cross-examination ..."); Commonwealth v. Durling, supra at
113 (right to present evidence, call witnesses, and cross-examine adverse
witnesses). Cross-examination may be limited or denied in certain instances, Frizado
v. Frizado, supra at 598 n. 5, such as to avoid harassment or intimidation
of witnesses, confusion, delay, or other abuses of the proceedings. See, e.g., Commonwealth
v. Johnson, 431 Mass. 535, 540 (in criminal context, "reasonable
limits may be placed on cross-examination 'based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the witness's safety,
or interrogation that is repetitive or only marginally relevant' "
[citation omitted] ); Judicial Guidelines § 5:01 ("the judge should not
permit ... cross-examination to be used for harassment or discovery
purposes"). Absent these circumstances, a defendant in a G.L. c. 209A
proceeding, as in any case, must be given the opportunity to present evidence
and cross-examine witnesses. Here, there was no showing by the plaintiff of any
of the grounds enumerated above that would justify a limitation on these
rights. [FN6] In fact, the issue whether to limit cross-examination was never
reached by the judge because he allowed no cross-examination at all. The judge
abused his discretion in denying the defendant the opportunity to present
testimonial evidence and cross-examine the plaintiff.
One final error of law by the judge in this case requires discussion.
The judge improperly determined that the defendant's right to present evidence
at an upcoming criminal hearing would sufficiently protect the defendant's due
process rights. The judge stated, "if we have a [G.L. c. 209A protective
order] ... and there is no pending criminal matters pending [sic ], then
that's a much different issue. In other words, we give both parties a full
right to have a hearing and witnesses.... But if there's a criminal matter
pending, then that's a different matter altogether." A defendant's right
to present evidence at a G.L. c. 209A hearing is unrelated to his rights at a
pending criminal proceeding. The right to be heard in one forum does not affect
the right to be heard in another.
Although "[a]buse prevention order proceedings were intended by
the Legislature to be as expeditious and informal as reasonably possible,"
Zullo v. Goguen, 423
For the foregoing reasons, the abuse prevention order against the
defendant is vacated.
So ordered.
1. In behalf of her minor daughter, K.O.
2. The plaintiff also filed a motion to strike portions of the
defendant's brief for failure to comply with Mass. R.A.P. 16(e), as amended,
378 Mass. 940 (1979). We deny the plaintiff's motion. Our holding does not rest
on any contested language in the brief, and we see nothing in the brief that is
confidential or otherwise prejudicial to the plaintiff.
3. The plaintiff does not assert the existence of an "engagement
relationship," and there is no evidence in the record to suggest such a
relationship ever existed between the parties. We therefore confine our
analysis to whether there was a "substantive dating relationship."
4. In 1996, the Legislature made a grammatical correction to the
definition which is immaterial to our analysis. St.1996, c. 450, § 232.
5. During one such request, defense counsel stated: "I would like
an opportunity to exercise my client's rights to cross examine [the plaintiff]
... and I would like to present additional evidence in terms of witnesses which
I believe according to the rules is my right and my client's right to ... due
process." The defendant's counsel further stated that his witnesses would
show that the daughter and the defendant were not engaged in a
"substantive dating relationship" and that the alleged assault did
not occur.
6. The plaintiff made bald assertions that the defendant intended to
harass witnesses and create confusion in the proceedings, but these claims are unsupported by the record.
Copr. (C) 2004 West. No Claim to Orig.