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Commentary
Guidelines for Judicial Practice
Abuse Prevention Proceedings
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COMMENTARY
It is unusual for a judicial determination involving rights and obligations
as serious as those at issue in a c. 209A action (denial of access
to the household for a year or more, child custody, support, etc.)
not to be subject to some form of appellate review. Yet no avenue
of appellate review is provided in c. 209A, nor does any other statute
expressly provide for review of any rulings made or orders issued
under this law.
Since
the enactment of c. 209A and until November 4, 1996, the vehicle
for appeal was G.L. c. 211, § 3, the provision pertaining to the
general superintendence of the Supreme Judicial Court.
The
Supreme Judicial Court took this approach because, "General Laws
c. 209A has no express appellate remedy. The plaintiff therefore
could invoke G.L. c. 211, § 3, because 'appellate review was otherwise
unavailable.'" Callahan v. Boston Municipal Court Department, 413
Mass. 1009 (1992)(Rescript). See alsoFrizado v. Frizado, 420 Mass.
592, 593 (1995); Silvia v. Duarte, 421 Mass. 1007, 1008 (1995);
Flynn v. Warner, 421 Mass. 1002, 1003 (1995); Cobb v. Cobb, 406
Mass. 21, 24 n.2 (1989).
However,
in Zullo v. Goguen, 423 Mass. 679 (1996), decided on November 4,
1996, the Supreme Judicial Court held that, "[u]nless and until
the Legislature decides otherwise, litigants seeking judicial review
of an order made pursuant to G.L. c. 209A are directed to the Appeals
Court." Id. at 682. The Court found this determination necessary
to ensure "uniform treatment of litigants" and "the development
of a consistent body of law" on the subject.
Appeal
to the District Court Appellate Division is not available. Morin
v. Majerowski, 1988 Mass. App. Div. 154 (1988).
In any event, if either party seeks to pursue an appeal, the Clerk-Magistrate
or Register, as the case may be, should be prompt in complying with
Massachusetts Rules of Appellate Procedure 8 and 9 when assembling
the record on appeal.
A
defendant may appeal an order even if the order has expired. Such
an appeal is not moot because the order has been entered in the
Commonwealth's Criminal Records System and the defendant, "could
be adversely affected by [the record] in the event of future applications
for an order under G.L. c. 209A or in bail proceedings." Wooldridge
v. Hickey, 45 Mass. App. Ct. 637, 638 (1998), citing Frizado v.
Frizado, 420 Mass. 592, 593-594 (1995).
When
the court vacates an order, G.L. c. 209A, § 7 requires the court
to direct the appropriate law enforcement agency to destroy all
record of the order. Vacated orders are not to be expunged from
the Registry of Civil Restraining Orders. See e.g., Vaccaro v. Vaccaro,
425 Mass. 153, 155-159 (1997).[Back]
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