Lipovetsky v. Spivak (Appeals Court)

FACTS:
1.  Plaintiff Wife sought and was granted an ex parte temporary protective order from Defendant Husband on January 27, 2014.
2.  On February 7, 2014, the protective order was extended to April 4, 2014.  The judge who heard the case on February 7, 2014 did not preside over the case when it was before the court on January 27, 2014.
3.  On April 4, 2014, the Plaintiff and Defendant were before the court and the plaintiff was self-represented.  The defendant requested a brief continuance to allow his attorney to arrive, pointing out that it was 9:55 am and the hearing was scheduled for 10:0 am.  However, when the plaintiff indicated that she had to pick up her child at 10:30 am, the judge decided to proceed with the hearing.  No witnesses were sworn.  The plaintiff stated that she wanted the abuse prevention order extended.  Without questioning the plaintiff or or offering the defendant an opportunity to be heard, the judge stated that she would extend the prior abuse prevention order for one year on the same terms and conditions.

ISSUE:
Can a judge dispense with the administration of the oath to the witnesses and giving the parties an opportunity to cross-examine adverse witnesses in a 209A hearing?

HOLDING:
No.

RULE:
1.  Due Process Rights Under 209A:  A scheduled hearing to extend or modify an abuse prevention order issued under G.L. c. 209a is an adversarial proceeding in which the parties have constitutional due process rights that include the "right to testify and to present evidence," and to cross-examine adverse witnesses.  C.O. v. M.M., 442 Mass. 648, 656 (2004).  See S.T. v. E.M., 80 Mass. App. Ct. 423, 429-430 (2011).
2.  Plaintiff Has Burden of Proof:  The plaintiff has the burden of proving that it is more likely than not that she is "suffering from abuse."  Iamele v. Asselin, 444 Mass. 734, 736 (2005), quoting from G.L. c. 209A, section 3.
3.  Judges Can't Dispense with Due Process:  Due to the sensitive nature of many of abuse prevention cases and the frequency with which one or both parties is self-represented, judges are encouraged to conduct hearings pursuant to G.L. c. 209A, section 3, in an informal and relaxed atmosphere.  See generally Guidelines for Judicial Practice:  Abuse Prevention Proceedings section 5:01 (Conduct of Hearings After Notice When Both Parties Appear: General) (2011); Mass. G. Evid. Section 1106 (2015).  However, a judge is not permitted to dispense with the administration of the oath to the witnesses, and must ensure that the parties are given an opportunity to cross-examine the adverse witnesses."  See Banna v. Banna, 78 Mass. App. Ct. 34, 36 (2010) at a G.L. c. 209A section 3 hearing the judge should "ascertain the current state of affairs [;]" a judge does not fulfill her obligation simply by asking the plaintiff if she wants an extension of a prior order.)

ANALYSIS:
1.  Based on the record before us, an evidentiary basis for the extension order entered on April 4, 2014 is lacking, and the manner in which the hearing was conducted was outside the bounds of a sound judicial discretion.
2.  IT is troubling that the judge did not briefly continue the hearing to give defendant's counsel an opportunity to be present.