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Mitchell v. Mitchell

Appeals Court, January 19, 2005

In a case of first impression, the Appeals Court announced the appropriate standards a judge should apply when deciding whether to vacate, terminate, or modify an abuse prevention (209A) order.

Request to Vacate 209A Order Retroactively:

When a party seeks to vacate retroactively an abuse prevention order on the ground of newly discovered evidence, the judge must find:

  • The new evidence was not available to the party seeking the relief at the initial hearing by the exercise of reasonable diligence;
  • The new evidence is material, relevant, and admissible;
  • The new evidence would have likely affected the result had it been available at the time; and
  • The new evidence constitutes more than just newly discovered evidence which only goes to impeach the credibility of a witness at the initial hearing.

Request to Terminate 209A Order:

When a party seeks to terminate an abuse prevention order, the judge must be satisfied by clear and convincing evidence "that the order is no longer needed to protect the victim from harm or the reasonable fear of serious harm." The Court stated that "an abuse prevention order, entered after a hearing that satisfies due process requirements … should be set aside only in the most extraordinary circumstances…."

Request to Modify 209A Order:

When a party seeks to modify an abuse prevention order, the judge must assess "the likelihood that the safety of the protected party may be put at risk by a modification." The greater the risk - the more substantial the showing the party seeking the relief must make. The Court stated that the standard must be a flexible one "to enable a court to deal effectively with the myriad circumstances that may arise during the pendency of an abuse prevention order." While acknowledging that changed circumstances may warrant adjustments to an order, the Court indicated in a footnote that unwarranted requests to modify may themselves be a form of abuse.

The Court stressed that in proceedings to vacate, terminate, or modify a 209A order, the victim "has no burden to establish the basis for the issuance of the underlying order." "In deciding whether to grant or deny a party's request for relief, the basis on which the order was initially issued is not subject to review or attack."

Last, but not least, if a judge allows a motion to vacate or terminate an order, the decision should be supported by findings of fact.
 

442 Mass. 648 (January 19, 2007)

In a case of first impression, the Appeals Court announced the appropriate standards a judge should apply when deciding whether to vacate, terminate, or modify an abuse prevention (209A) order.

Request to Vacate 209A Order Retroactively:

When a party seeks to vacate retroactively an abuse prevention order on the ground of newly discovered evidence, the judge must find:

  • The new evidence was not available to the party seeking the relief at the initial hearing by the exercise of reasonable diligence;
  • The new evidence is material, relevant, and admissible;
  • The new evidence would have likely affected the result had it been available at the time; and
  • The new evidence constitutes more than just newly discovered evidence which only goes to impeach the credibility of a witness at the initial hearing.

Request to Terminate 209A Order:

When a party seeks to terminate an abuse prevention order, the judge must be satisfied by clear and convincing evidence "that the order is no longer needed to protect the victim from harm or the reasonable fear of serious harm." The Court stated that "an abuse prevention order, entered after a hearing that satisfies due process requirements … should be set aside only in the most extraordinary circumstances…."

Request to Modify 209A Order:

When a party seeks to modify an abuse prevention order, the judge must assess "the likelihood that the safety of the protected party may be put at risk by a modification." The greater the risk - the more substantial the showing the party seeking the relief must make. The Court stated that the standard must be a flexible one "to enable a court to deal effectively with the myriad circumstances that may arise during the pendency of an abuse prevention order." While acknowledging that changed circumstances may warrant adjustments to an order, the Court indicated in a footnote that unwarranted requests to modify may themselves be a form of abuse.

The Court stressed that in proceedings to vacate, terminate, or modify a 209A order, the victim "has no burden to establish the basis for the issuance of the underlying order." "In deciding whether to grant or deny a party's request for relief, the basis on which the order was initially issued is not subject to review or attack."

Last, but not least, if a judge allows a motion to vacate or terminate an order, the decision should be supported by findings of fact.